State v. Vernon Dowdy
| Decision Date | 29 December 1982 |
| Docket Number | 10788,82-LW-2843 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. VERNON DOWDY, JR., Defendant-Appellant. C.A. |
| Court | Ohio Court of Appeals |
APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT COUNTY OF SUMMIT, OHIO CASE NO. CR 79 9 1250.
LYNN SLABY, Prosecuting Attorney, City-County Safety Bldg., Akron OH 44308 for Plaintiff.
TED CHUPARKOFF, Attorney at Law, 501 E. Exchange St., Akron, OH 44304 for Defendant.
DECISION AND JOURNAL ENTRY
This cause was heard December 6, 1982, upon the record in the trial court, and the briefs. It was argued by counsel for the parties and submitted to the court. We have reviewed each assignment of error and make the following disposition:
This appeal is predicated upon a judgment of the court of common pleas terminating defendant's probation and imposing sentence.
In June, 1980, defendant was placed on probation after pleading guilty to the charge of gross sexual imposition (R.C 2907.05) involving his step-daughter.
While on probation defendant continued to live with his wife and step-daughter.
On May 24, 1982, defendant's wife signed a complaint again accusing him of gross sexual imposition upon his step-daughter. The defendant was arrested and held without bond while the new charge was presented to the grand jury.
On July 3, 1982, defendant was served with the indictment charging him with one count of sexual imposition. R.C 2907.05(A)(3).
The trial court ordered a hearing to be held on the probation violation prior to trial on the new charge. Defendant moved that the hearing be continued until after trial. The motion was overruled; the hearing was held and defendant's probation was terminated and his original sentence ordered executed.
Defendant contends that the court's refusal to continue the probation hearing until after trial on the 1982 charge violated his right to a fair trial and due process, and was an unauthorized usurpation of judicial power.
Unquestionably a trial court has the jurisdiction to conduct a probation violation hearing for a defendant granted probation by the court. R.C. 2931.03, R.C. 2951.08, and R.C. 2951.09. These statutes place no jurisdictional limitations on a trial court of general jurisdiction to hold such hearings. Hence we find no merit in defendant's contention that the court unlawfully usurped judicial power.
Defendant's contention that the procedure violated his right to a fair trial and due process of law lacks merit. While we find no Ohio cases on the issue, the courts of other states have determined that there is no constitutional due process requirement that a criminal trial be held on charges giving rise to the probation violation before the revocation hearing. See, Flint v. Mullen (C.A. 1, 1974), 499 F. 2d 100, cert. denied 419 U.S. 1026 (1974); Dail v. State (Nev. Sup. Ct., 1980), 610 P. 2d Sup. Ct. 1193; State v. Ryan (Mont. Sup. Ct., 1975), 533 P. 2d 1076; Gonsalves v. Howard (R.I. Sup. Ct., 1974), 324 A. 2d 338; State v. Cyganowski (Wash. App., 1978), 584 P. 2d 426; Evans v. State (Ga. App., 1980), 266 S.E. 2d 545; and Commonwealth v. Kates (Pa. Sup. Ct., 1973), 305 A. 2d 701. As stated in Dickerson v. State, (Ga. App., 1975), 222 S.E. 2d 649:
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