Romito v. Maxwell
| Decision Date | 07 June 1967 |
| Docket Number | No. 40656,40656 |
| Citation | 10 Ohio St.2d 266,227 N.E.2d 223 |
| Parties | , 39 O.O.2d 414 ROMITO v. MAXWELL, Warden. |
| Court | Ohio Supreme Court |
In August 1952, petitioner, Frank J. Romito, was convicted of burglary. He was sentenced to the Ohio Penitentiary for a term of one to 15 years. Petitioner was paroled in September 1956, but in April 1957 he was again indicted for burglary, larceny and receiving stolen property. He was found guilty of burglary and on June 4, 1957, was sentenced to the Ohio Penitentiary for a term of one to 15 years. In 1941, he was indicted, convicted and sentenced to the Ohio Penitentiary for armed robbery. On July 10, 1957, petitioner was indicted as an habitual criminal. Petitioner was pleaded guilty to this charge and was sentenced under the provisions of Section 2961.11, Revised Code, for a term of 15 years, that being the statutory maximum for his last prior conviction for burglary.
In August 1966, the Court of Common Pleas of Hamilton County determined that the habitual criminal indictment, and hence the petitioner's conviction thereon were void because one of the counts contained therein was armed robbery which is not one of the crimes specified in Section 2961.11, Revised Code.
Macejko & Macejko, Youngstown, for petitioner.
William B. Saxbe, Atty. Gen., and William C. Baird, Columbus, for respondent.
It is petitioner's contention that his burglary sentence in 1957 was vacated by the habitual criminal proceedings, that such sentence was not reimposed after the setting aside of the habitual criminal conviction, and that, therefore, there is no sentence upon which he can now be detained.
Section 2961.13, Revised Code, relating to habitual criminals, reads in part as follows:
'* * * If the accused pleads guilty to such indictment, or if the jury finds him guilty, or if the court finds him guilty after waiver of a jury, the court shall sentence him to the punishment prescribed in section 2961.11 or 2961.12 of the Revised Code, as the case may be, and shall vacate the previous sentence, if sentence has been imposed, deducting from the new sentence all time actually served by the defendant on the sentence so vacated.'
Under the provisions of this section, it is mandatory that the immediately prior sentence be vacated by the trial judge. If the trial judge should fail expressly to vacate such sentence, it is vacated by operation of law by the imposition of the sentence under the habitual criminal conviction. This clearly follows from the fact that a habitual criminal conviction is not a conviction for a crime in and of itself but constitutes merely an enhancement of the penalty for the last prior conviction. Maloney v. Maxwell, Warden, 174 Ohio St. 84, 186 N.E.2d 728, and Blackburn v. State, 50 Ohio St. 428, 36 N.E. 18.
Petitioner urges that, inasmuch as the burglary sentence was vacated and never reinstated by the court and the habitual criminal conviction was found to be void, there is now no present sentence for him to serve.
The effect of determining that a judgment is void is well established. It is as though such proceedings had never occurred; the judgment is a mere nullity (...
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State v. Simpkins
...(Citations omitted.)"2 Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, at ¶ 12, quoting Romito v. Maxwell (1967), 10 Ohio St.2d 266, 267-268, 39 O.O.2d 414, 227 N.E.2d 223. {¶ 20} The underpinning of our decisions from Beasley to Bezak is the fundamental understanding that no cour......
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State v. Parker
...been no judgment.’ " State v. Billiter , 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960, ¶ 10, quoting Romito v. Maxwell , 10 Ohio St.2d 266, 267-268, 227 N.E.2d 223 (1967).{¶ 83} Parker's problem is that this court has held that "[w]here a criminal defendant, subsequent to his or her d......
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State v. Fischer
...Bezak indicated that it found Jordan dispositive. Id. at ¶ 12. But the majority also relied heavily on Romito v. Maxwell (1967), 10 Ohio St.2d 266, 267–268, 39 O.O.2d 414, 227 N.E.2d 223, for the proposition that the effect of a void judgment is that the judgment is a nullity, and the parti......
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State v. Williams
...was that the parties were placed in the same position as if no sentencing had occurred. Id. at ¶ 12, citing Romito v. Maxwell, 10 Ohio St.2d 266, 267–268, 227 N.E.2d 223 (1967). And because these sentences were void, they could be challenged on direct appeal and in a collateral attack. Simp......