Lippert v. Engle, 77-35

• Decision Date: 30 March 1977
• Docket Number: No. 77-35,77-35
• Parties: , 3 O.O.3d 434 LIPPERT, Appellant, v. ENGLE, Supt., et al., Appellees.
• Court: Ohio Supreme Court

Page 281

49 Ohio St.2d 281

361 N.E.2d 239, 3 O.O.3d 434

LIPPERT, Appellant, v. ENGLE, Supt., et al., Appellees.

No. 77-35.

Supreme Court of Ohio.

March 30, 1977.

Robert L. Lippert, pro se.

William J. Brown, Atty. Gen., and Dennis L. Sipe, Wilmington, for Superintendent of the Chillicothe Correctional Institute and others.

PER CURIAM.

Petitioner contends that his allegations were sufficient under R.C. 2725.04 to withstand the motion to dismiss. As support for that contention, petitioner cites Featheringham v. Eckle (1957), 81 Ohio Law Abs. 450, 162 N.E.2d 493.

Petitioner's reliance on Featheringham is misplaced. In Freeman v. Maxwell (1965), 4 Ohio St.2d 4, 210 N.E.2d 885, this court reaffirmed the necessity of successfully challenging the jurisdiction of the sentencing court as a predicate to the issuance of a writ of habeas corpus.

The requirement that petitioners must attack the jurisdiction of the sentencing court is all the more apparent where, as noted in Ross v. Court (1972), 30 Ohio St.2d 323, 285 N.E.2d 25, 'the sentencing court had jurisdiction to render the judgment of conviction.' In Ross, as here, petitioner made no claim of lack of jurisdiction of the sentencing court and this court sustained the motion to dismiss therein.

For reason of the foregoing, the judgment of the Court of Appeals, dismissing the petition, is affirmed.

Judgment affirmed.

C. WILLIAM O'NEILL, C. J., and HERBERT, CELEBREZZE, WILLIAM B. BROWN, PAUL W. BROWN, SWEENEY and LOCHER, JJ., concur.