City of Brook Park v. Necak

Decision Date24 February 1986
Docket NumberNo. 50177,50177
Citation30 OBR 218,506 N.E.2d 936,30 Ohio App.3d 118
Parties, 30 O.B.R. 218 CITY OF BROOK PARK, Appellee, v. NECAK, Appellant.
CourtOhio Court of Appeals

Syllabus by the Court

1. Misinformation from defendant's counsel does not make the original sentence unlawful. Similarly, the court cannot increase the defendant's

in an attempt to punish counsel for supplying misinformation.

2. A trial court has no statutory authority to increase a lawful sentence after the defendant has served part of that sentence.

3. Ohio courts have no authority, sua sponte or otherwise, to reconsider their own valid final judgments in criminal cases.

Timothy Armstrong, Asst. Law Director, Cleveland, for appellee.

Burt H. Sagen and Paul Mancino, Jr., Cleveland, for appellant.

MARKUS, Presiding Judge.

The defendant, Stevan Necak, appeals from an order which increased his sentence after he had partially satisfied the court's original sentence. We agree that the court lacked authority to make that modification, so we reverse and reinstate the court's original sentence.

On January 28, 1985, defendant pled guilty to violating a municipal ordinance against driving under the influence of alcohol. The court found him guilty and requested a presentence investigation. Eighteen days later, after receiving the presentence report, the court sentenced him to thirty days in jail, a $225 fine, and costs. The court suspended twenty-seven days of the jail term, and placed defendant on active probation for one year on condition that he participate in the "counter attack" alcohol rehabilitation program.

Six weeks later, the court recalled the defendant to reconsider its previous sentence. Apparently, the presentence report at the original sentencing hearing recounted a 1979 conviction in a neighboring municipality. Defendant's counsel reportedly denied that this conviction involved an alcohol-related moving violation. The court later obtained records from that municipality which gave contrary information.

Despite defense counsel's protest that the defendant had already paid the fine and "started the sentence," the court vacated its previous sentence. It then sentenced the defendant to sixty days in jail, a fine of $225, and costs. The court suspended fifty days of the jail term and placed defendant on the same probation terms as in the original sentence. Thus, the new sentence increased the total jail term from thirty to sixty days, and the jail term, after suspension, from three to ten days. The court granted the defendant credit for the time served on the original sentence: "any jail time that's been served goes toward this."

The defendant's three assignments of error challenge the modified sentence on grounds that it (a) subjected him to double jeopardy, (b) resulted from independent investigations by the court, and (c) was procedurally improper.

The Double Jeopardy Clause protects the defendant's right to finality for an acquittal and prevents multiple punishments for the same conviction. Benton v. Maryland (1969), 395 U.S. 784, 795-796, 89 S.Ct. 2056, 2062-63, 23 L.Ed.2d 707. The courts can increase sentences when they do not purport to be final. Columbus v. Messer (1982), 7 Ohio App.3d 266, 7 OBR 347, 455 N.E.2d 519. " * * * [A] sentence does not have the qualities of constitutional finality that attend an acquittal." United States v. DiFrancesco (1980), 449 U.S. 117, 134, 101 S.Ct. 426, 436, 66 L.Ed.2d 328. Thus, the prosecution's appeal from a sentencing decision may not offend the Double Jeopardy Clause of the Fifth Amendment. Id. The defendant has no reasonable expectation that the sentence is final when the legislature expressly allows appellate review to correct inappropriate sentences. Id.

Additionally, the courts can correct legally improper sentences, even if they thereby impose greater penalties. Resentencing to impose an omitted mandatory penalty does not violate double jeopardy restraints. Bozza v. United States (1947), 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed.2d 818; State v. Beasley (1984), 14 Ohio St.3d 74, 14 OBR 511, 471 N.E.2d 774. The legally authorized judge can resentence a defendant after an unauthorized judge purported to sentence him. Beatty v. Alston (1975), 43 Ohio St.2d 126, 72 O.O.2d 70, 330 N.E.2d 921.

In this case, the trial court modified a legally proper sentence without statutory authority after defendant paid the fine and apparently served part of the jail term. The...

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103 cases
  • State v. Houston, 103252
    • United States
    • Ohio Court of Appeals
    • June 9, 2016
    ...argument,"[c]ourts may increase sentences when the sentence does not constitute a final order. Brook Park v. Necak, 30 Ohio App.3d 118, 119, 506 N.E.2d 936 [(8th Dist.1986)], citing Columbus v. Messer, [7 Ohio App.3d 266, 455 N.E.2d 519 (10th Dist.1982)]. This Court has previously noted tha......
  • State v. Peak
    • United States
    • Ohio Court of Appeals
    • June 27, 2019
    ...Dist. Cuyahoga No. 100342, 2014-Ohio-1841 (increased penalty after outburst with court during sentencing); Brook Park v. Necak, 30 Ohio App.3d 118, 119, 506 N.E.2d 936 (8thDist.1986), citing Columbus v. Messer, 7 Ohio App.3d 266, 455 N.E.2d 519 (10th Dist. 1982) ("The courts can increase se......
  • State ex rel. Mason v. Gaul, 2004 Ohio 2342 (OH 5/4/2004)
    • United States
    • Ohio Supreme Court
    • May 4, 2004
    ...indeed, the respondent judge lacked jurisdiction to modify it, except under very limited circumstances. In City of Brook Park v. Necak (1986), 30 Ohio App.3d 118, 120, 506 N.E.2d 936, this court held that "Ohio courts have no authority to reconsider their own valid final judgments in crimin......
  • State v. Woodson
    • United States
    • Ohio Court of Appeals
    • May 14, 2012 a criminal case. See State ex rel. Hansen v. Reed, 63 Ohio St.3d 597, 599, 589 N.E.2d 1324(1992), citing Brook Park v. Necak, 30 Ohio App.3d 118, 506 N.E.2d 936(8th Dist. 1986); see, also, State v. Meister, 76 Ohio App.3d 15, 19, 600 N.E.2d 1103(1st Dist. 1991). The Ohio Supreme Court ha......
  • Request a trial to view additional results

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