Anderson, In re
| Decision Date | 03 February 1978 |
| Citation | 55 Ohio App.2d 199,380 N.E.2d 368 |
| Parties | , 9 O.O.3d 346 In re ANDERSON. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
A probation period is not tolled by a conviction that is reversed and remanded where the remand results in the petitioner's discharge.
Eugene Sidney Bayer, Cleveland, for petitioner.
John T. Corrigan, Cleveland, for respondent.
This is an original action in habeas corpus. The petitioner's prayer for the writ was granted. He was brought before this Court pursuant to the writ for determination of the legality of his detention. For reasons assessed below, his detention is contrary to law.
The chronology of the events in this case is crucial to decision. The dates of consequence are these:
(1) March 9, 1971 Petitioner plead guilty to aggravated assault (R.C. 2903.12) in the Court of Common Pleas of Cuyahoga County (Case No. 96086) (hereafter "the first case").
(2) June 2, 1971 Petitioner was sentenced in the first case and incarcerated.
(3) October 4, 1971 Petitioner was released in the first case under a program of shock probation and conditions which included the expiration of probation on October 4, 1976.
(4) April 2, 1976 Petitioner was convicted on one count of aggravated robbery (R.C. 2911.01) (Case No. CR 20449) (hereafter "the second case").
(5) September 9, 1976 Petitioner was brought back to Cuyahoga County for a hearing to determine probation violation in the first case.
(6) October 5, 1976 The trial court determined that the petitioner was a probation violator in the first case by reason of his conviction in the second.
(7) July 28, 1977 The conviction for aggravated robbery in the second case was reversed and the case remanded to Common Pleas Court for further proceedings on the ground that the petitioner had not received a fair trial because of ineffective assistance of counsel. As part of the remand the Common Pleas Court was instructed to consider whether a motion to discharge for lack of speedy trial had been timely filed, Ohio v. Anderson (Court of Appeals, 8th District, No. 36384, unreported).
(8) October 11, 1977 On remand, the trial court considered the second case and found that petitioner had made a timely motion for discharge for lack of a speedy trial. The court ordered that the petitioner be discharged.
(9) December 23, 1977 Petitioner was arrested on a capias as a probation violator in the first case.
(10) December , 1977 * Petitioner filed a motion for discharge.
(11) January 24, 1978 The lower court held a hearing on petitioner's motion for discharge. One Phillips, the victim in the second case, testified about an aggravated robbery that occurred on October 11, 1974.
The most critical date in this chronology is October 5, 1976. On that date, petitioner had paid his debt to society under the sentence in the first case unless his conviction on April 2, 1976, had tolled his probation period, R.C. 2951.07. If the period had not tolled, then the violation hearing took place at a time after probation had ended. The consequence is that the sentencing court no longer had jurisdiction over petitioner even though the probation violation proceedings can be said to have been instituted on September 9, 1976, when the petitioner was brought back to Cleveland for a probation violation hearing.
The running of the probation period in the first case did not toll with the conviction on April 2, 1976, in the second case. When this court reversed and remanded the conviction of April 2, 1976 (CR 20449, Ohio v. Anderson, Supra ), it placed the petitioner in the position of one not convicted. The defendant, then, was clothed with...
To continue reading
Request your trial
-
Brewer v. Dahlberg
...over him. However, we do not believe the bar of § 2725.05 applies in the present case for the following reasons. In In re Anderson, 55 Ohio App.2d 199, 380 N.E.2d 368 (1978), the Ohio Court of Appeals found that a writ of habeas corpus should be granted when a parolee's reincarceration was ......
-
Jibben v. State
... ... Contrary to Jibben's contention, we adopt the rule that his term of probation was tolled during the time he was incarcerated. People v. Davidson, 25 Cal.App.3d 79, 101 Cal.Rptr. 494 (1972); In Re Anderson, 55 Ohio App.2d 199, 9 O.O.3d 346, 380 N.E.2d ... 368 (1978); Williams v. State, 50 Wis.2d 709, 184 N.W.2d 844 (1971); and Rease v. Commonwealth, 227 Va. 289, 316 S.E.2d 148 (1984). Without considering whether WYO.STAT. § 7-13-305(d) (1987) 1 should be given retrospective effect, it ... ...
-
White v. Robinson
...being confined after jurisdiction over him has expired. Brewer v. Dahlberg, 942 F.2d 328 (6th Cir. 1991), citing In re Anderson, 55 Ohio App. 2d 199 (8th Dist. 1978). Habeas corpus rather than mandamus is the appropriate action forpersons claiming entitlement to immediate release from priso......
-
White v. Robinson
...being confined after jurisdiction over him has expired. Brewer v. Dahlberg, 942 F.2d 328 (6th Cir. 1991), citing In re Anderson, 55 Ohio App. 2d 199 (8th Dist.. 1978); State ex rel Lemmon v. Ohio Adult Parole Authority, 78 Ohio St. 3d 186 (1997). White filed an original habeas corpus action......