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9th District Alert

One journal entry says, "The defendant having been previously convicted by a jury of the crime of felonious assault, he is hereby sentenced to..."  Another says, "The defendant, having previously pled guilty to receiving stolen property, the court sentences defendant as follows..."  Any problem?

There is in the 9th District (which comprises Summit, Medina, Wayne, or Lorain Counties).  If you've got a criminal case there, in either the trial or appellate court, you need to be aware of the fact that the Court of Appeals for that district has applied an exceedingly strict interpretation to Criminal Rule 32(C)'s requirement that "a judgment of conviction shall set forth the plea, the verdict or findings, and the sentence."  Since March, the 9th District has held that a failure to include all of those will result in dismissal of the appeal for lack of a final appealable order.

That means that either of the two journal entries above would get bounced.  Even if the defendant has been convicted after a trial (bench or jury), the final entry has to include the fact that he initially pled not guilty.  Even if he pled guilty, the journal entry has to include a finding of guilt by the trial court.  In fact, a statement in the entry that "defendant has been previously convicted of rape" does not satisfy the requirement of a finding of guilt.  (Apparently, the entry has to include the further notation that, based upon the jury's verdict, the court finds the defendant guilty.)  There were two more cases along this line last week, here and here, and the initial case in this line was State v. Miller, which was decided back on March 26.

Frankly, I think the court's interpretation of Rule 32(C) is hypertechnical, and represents an exaltation of form over substance.  The real problem is that you can wind up hurting your client if you're not aware of it; it's a pain to file all your briefs, wait six months for oral argument, and then have the court never even reach the merits of the appeal, but instead kick you out so that you have to start the appeal process all over again.

You don't actually have to do that; as the court indicated in its last decision (and in Miller), after getting a correct journal entry, you have to refile the appeal, but at that point can move the court to transfer the papers from the earlier appeal and consider the case submitted on the briefs that have been already filed, and the court will give the case "expedited" consideration.  But if you've got an appeal pending, check the journal entry now, and if it doesn't pass muster, dismiss the appeal at this point rather than waiting any longer.  Also, if you've got a criminal case that goes to verdict, and you want to appeal it, make sure that the trial court prepares a correct journal entry.

One final point:  Miller says the court will apply the plea requirement prospectively, that is, the failure of the journal entry to indicate what the defendant's plea was will not void the entry as long as it was filed before the Miller decision came down.  Everything else is applied retroactively, though.

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