State, ex rel. Hansen, v. Reed

• Decision Date: 06 May 1992
• Docket Number: No. 91-662,91-662
• Citation: 63 Ohio St.3d 597,589 N.E.2d 1324
• Parties: The STATE, ex rel. HANSEN, Appellant, v. REED, Judge, Appellee.
• Court: Ohio Supreme Court

Page 597

63 Ohio St.3d 597

589 N.E.2d 1324

The STATE, ex rel. HANSEN, Appellant, v. REED, Judge, Appellee.

No. 91-662.

Supreme Court of Ohio.

Submitted Jan. 14, 1992.

Decided May 6, 1992.

Appellant filed a "complaint in mandamus" asking the Court of Appeals for Cuyahoga County (1) to accept a nonjournalized oral pronouncement of a finding of guilty and a sentence by the Bedford Municipal Court as a final appealable order, or (2) to issue a writ of procedendo ordering the Bedford Municipal Court to enter judgment consistent with its oral indications of conviction and sentence, and (3) to reinstate appellant's appeal in case Nos. 57851 and 57852 before the Court of Appeals for Cuyahoga County.

On February 4, 1991 the court of appeals ruled that "since relator's complaint fails to state a claim for relief in mandamus or procedendo, respondent's motion to dismiss is granted."

The case is now before the court upon an appeal as of right.

Bruce H. Wilson, Akron, for appellant.

Melling, Junkin & Bell, Brian J. Melling and Clarence B. Rader III, Bedford, for appellee.

PER CURIAM.

We affirm. At the conclusion of the proceedings on May 9, 1989, the Bedford Municipal Court stated:

"Speeding, allegedly 67 in a 55 and a plea of no contest, find him guilty, a fine of $25 and Court costs. Enter the no contest plea to the counterfeit identification, there's a finding of guilty, the fine's a hundred dollars and the costs. The fictitious IDs are ordered confiscated * * *."

The following then occurred:

"Mr. Wilson: Your honor, would you consider suspending execution on the sentence just pending our consideration of filing of a notice of appeal?

"Judge Reed: Sure, whatever you want.

"Mr. Wilson: All right. You have, I'm certain, a more than adequate bond to cover both fines and costs * * *.

"Judge Reed: Let me see if I can get something straight, Mr. Wilson. You cut a deal with the Prosecution for the entrance of a change of plea and now you're contemplating filing an appeal, and yet you cut a deal with the Prosecutor; is that right?

"Mr. Schmitz [prosecutor]: That's exactly right, Your Honor.

"Judge Reed: Is that what you want to do?

"Mr. Wilson: I would consider it, yes, Judge. I think that's my obligation to my client.

"Judge Reed: Well, I think that's a pretty piece of shabby work, Mr. Wilson * * *. I don't think I have ever heard of that being done before. Stay execution ten days pending your appeal, sir."

The trial judge noted appellant's plea and the court's finding and sentence on the case envelope, but no journal entry of the conviction, sentence or stay was prepared or journalized. On May 15, 1989, appellant filed a notice of appeal to the court of appeals. By journal entry of May 16, 1989, sua sponte, the court vacated the "Court indications of May 9, 1989" and set the matter for trial. On May 18, 1989, another notice of appeal to the court of appeals was filed. On December 13, 1990, the court of appeals dismissed the appeals in case Nos. 57851 and 57852 because neither was taken from a final appealable order. The subsequent appeal to this court was dismissed May 22, 1991. Oakwood v. Hansen (1991), 60 Ohio St.3d 707, 573 N.E.2d 666.

On December 12, 1990, appellant filed the instant action. The court of appeals' decision of February 4, 1991, sustained respondent's motion to dismiss for failure to state a claim for relief upon finding that "[w]rits of mandamus and procedendo may be issued to compel actions by inferior tribunals only. * * * Thus, this court is without jurisdiction to compel its members to perform any actions, including accepting a nonjournalized order as a final appealable order or reinstating cases on appeal." (Citations omitted.) The court then observed that it did have jurisdiction to compel action by the lower tribunal for the issuance of writs of mandamus or procedendo, provided prerequisites for the issuance of such writs were met. The court noted that relator was requesting an order requiring the trial court to enter a particular judgment, i.e., a judgment consistent with an oral announcement. However, the court refused to do so, because the trial court's oral announcement had been vacated by written journal entry. The court of appeals noted: "Neither mandamus nor procedendo can be used to control judicial discretion. * * * Moreover, we have no reason to believe that respondent is not now proceeding to final judgment in relator's case, albeit in a different fashion." (Citations omitted; emphasis sic.)

Appellant concedes that "it is axiomatic * * * that a court only speaks through its journal. * * * Further, until an entry is journalized, the court retains the right and discretion to review and reverse its previous findings. * * * "

However, as appellant also pointed out, a court has no authority to reconsider its own valid final judgments in criminal cases. Brook Park v. Necak (1986), 30 Ohio App.3d 118, 30 OBR 218, 506 N.E.2d 936. The flaw in appellant's reasoning is his assumption that, in the instant case, the trial court dealt with a final judgment. In the first paragraph of the syllabus of State v. Tripodo (1977), 50 Ohio St.2d 124, 4 O.O.3d 280, 363 N.E.2d 719, we stated: "An announcement of a decision in a criminal case is not a final appealable order until the entry of judgment thereon is filed with the trial court. (App.R. 4[B] .)"

We stated further:

"Appellant argues that the ruling itself constitutes the final...