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Case Update

The only significant decision out of Washington last week was Smith v. Spisak, which I discussed on Friday.  Some decisions are expected on Wednesday, the most eagerly anticipated of which is the one on campaign finance reform, which you probably won't read about here.  Two cases that would merit discussion -- one on criminal forfeiture laws and other other on whether prosecutors have immunity for presenting perjured testimony -- won't be finding their way here, either; as I'd mentioned before, both were dismissed after the parties arrived at settlements. 

Smith was one more decision than the Ohio Supreme Court came out with last week; not even a disciplinary opinion chastising some miscreant attorney.  I did see an announcement from the court that they'd given the parties in Turner v. Levin 14 days to explain why the case shouldn't be dismissed for lack of jurisdiction.  Hmmm, could be interesting, I thought.  It's not; it's a tax board appeals case, and the question is whether the case should be dismissed because of "appellant's failure to specify in his notice of appeal the 'errors complained of' as required by R.C. 5717.04."  Rest assured that you will read about me becoming the newest member of the Chippendales before you read about tax cases here.

So, in anticipation of better days, let's check out what's happening in the courts of appeals, where it's also a slim menu, especially on the civil side...

Criminal.  Where sentence is void for failure to properly impose post-release controls, time doesn't begin running for post-conviction relief until new sentencing hearing, 9th District holds... Forgery and misuse of credit cards are not allied offenses, says 6th District; restitution order reversed, though, because no testimonial or documentary evidence in record to support amount found by judge... 8th District holds that violation of community control sanction need not be proved beyond a reasonable doubt; "substantial" proof is all that's required... Prosecutor's and trial court's incorrectly telling defendant he would be eligible for judicial release 10 years into an agreed 15-year sentence doesn't render plea involuntary, 6th District rules... Good case on DWI stops:  9th District reverses denial of motion to suppress, says that "unusual driving" does not necessarily give reasonable suspicion for a stop... No final appealable order where trial court has not yet ruled on defendant's motion for new trial or in the alternative for judgment of acquittal, say 8th District...

Civil.  City impounds vehicle, later sells it to scrap yard where it's destroyed; 8th District holds that sovereign immunity prevents owner of vehicle from suing for failing to properly notify him...

Another reason why Anders briefs should be outlawed.  Walter Polus appealed from his six-year sentence after violating community control sanctions.  His first appellate lawyer filed an Anders brief, saying he couldn't find any non-frivolous errors.  The 6th District did find some potential error following its own review, so appointed new counsel to pursue the appeal.  In State v. Polus, it agrees that the trial court didn't properly advise Polus of the possible prison sentence when it put him on community control, so it vacates the sentence and remands, holding that prison isn't an option.

If you're going to file an Anders brief which could have resulted in your client spending six years in prison he didn't have to, you probably shouldn't be doing appellate work.

Bizarre ruling of the week.  In State v. Voyles, the defendant filed a motion to suppress a DWI stop.  The state claimed he didn't present sufficient facts in his motion to show he was entitled to a hearing, and he pled no contest before the trial court ever ruled on the motion.  The 6th Circuit decides this means he waived his right to challenge the court's handling of the suppression motion:  the complaint alleged he was driving with a BAC of .151, a no contest plea is an admission of the facts of the complaint, and

It is implicit in a defendant's plea of no contest that, because the facts alleged in the complaint are true, those facts created reasonable suspicion to detain and arrest the defendant for the offense to which he enters the plea.

Not only does this make no sense -- whether the defendant was driving drunk and whether the arresting officer had a reasonable suspicion to believe that are two totally different issues -- but it would mean a no-contest plea would foreclose an appeal even if the trial court had held an evidentiary hearing.


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