State v. Trimmer

• Decision Date: 13 June 1947
• Citation: 80 Ohio App. 545,76 N.E.2d 896
• Parties: STATE v. TRIMMER.
• Court: Ohio Court of Appeals

76 N.E.2d 896

80 Ohio App. 545

STATE v. TRIMMER.

Court of Appeals of Ohio, Second District, Franklin.

June 13, 1947

Syllabus by the Court.

1. Where the defendant was tried, found guilty and sentenced on a charge of contributing toward the delinquency of a minor and the judgment and sentence were properly journalized, the court was without authority two days later to again pronounce judgment and sentence, unless the first order was vacated the second judgment and sentence were null and void.

2. The provisions of Section 13459-3, General Code, are mandatory and a motion to dismiss an appeal for non-compliance therewith will be sustained.

3. The failure to specifically describe the judgmen appealed from so as to identify it, as provided in Section 13459-5 General Code, does not furnish a sufficient ground for dismissing the appeal.

B. N. Murray, of Columbus, for appellant.

Ralph J. Bartlett, Pros. Atty., and William C. Bryant, both of Columbus, for appellee.

WISEMAN Presiding Judge.

This cause is submitted on motion of plaintiff, appellee herein, to dismiss the appeal and to affirm the judgment of the trial court on five separate grounds.

The defendant, appellant herein, was charged with, tried for and found guilty of contributing toward the delinquency of a minor, by the Court of Common Pleas, Division of Domestic Relations, Franklin county, Ohio. The case was tried on January 28, 1947, on which date the trial judge signed and filed a journal entry in which he found the defendant guilty of the offense charged, imposed a fine of $25 and costs, which was suspended on condition the defendant refrain from taking his minor grandson into beer parlors. On January 30, 1947, the trial judge signed and filed a second journal entry in which he found from the evidence that the defendant was not intoxicated, but that the defendant did contribute toward the delinquency of the minor. The notice of appeal was filed on February 28, 1947, which was more than 30 days after the sentence and judgment pronounced by the court, under date of January 28, 1947.

Plaintiff moves the court of dismiss the appeal on the ground that the notice of appeal was not filed within 30 days after sentence and judgment, as required by Section 13459-4, General Code, which provides: 'Such appeal, unless otherwise provided, may be filed as a matter of right within thirty days after sentence and judgment. After thirty days from such sentence and judgment such appeal may be filed only by leave of the court or two of the judges thereof.'

Leave of court to appeal was neither asked for nor obtained. Under this section, an appeal may be filed as a matter of right 'within thirty days after sentence and judgment.' If the time within which the appeal could be taken dates from the order made on January 30, 1947, the appeal was filed within time; if from the order made on January 28, 1947, the appeal was not filed within time. On January 28, 1947, the court had tried the defendant without the intervention of a jury. At the close of the case the trial judge could, and did, pronounce sentence and judgment. The entry which embodied the sentence and judgment was complete, legal in form, and journalized as the sentence and judgment of the court. No motion for new trial, or to vacate the sentence and judgment, was filed. Two days later a second entry was filed, more elaborate than the first entry in which the court pronounced sentence and judgment, which varied only slightly from the sentence and judgment in the first order. No explanation is given for filing two entries, or for the...