State v. Gaston

2011 Ohio 6702

Opinion

[Cite as State v. Gaston, 2011-Ohio-6702.]

IN THE COURT OF APPEALS OF CLARK COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellant : C.A. CASE NO. 11CA0011

vs. : T.C. CASE NO. 10CR0684

KARL GASTON : (Criminal Appeal from Common Pleas Court Defendant-Appellee :

. . . . . . . . .

O P I N I O N

Rendered on the 23rd day of December, 2011.

. . . . . . . . .

Andrew Wilson, Pros. Attorney; Andrew R. Picek, Atty. Reg. No. 0082121, Asst. Pros. Attorney, P.O. Box 1608, Springfield, Ohio 45501 Attorneys for Plaintiff-Appellant

John Vogel, Atty. Reg. No. 0071169, 35 East Gay Street, Suite 212, Columbus, OH 43215 Attorney for Defendant-Appellee

. . . . . . . . .

GRADY, P.J.:

{¶ 1} This appeal is brought by the State of Ohio pursuant

to R.C. 2945.67 from a final order dismissing an indictment.

{¶ 2} Defendant was charged by indictment in Case No. 10CR501

with a violation of R.C. 2950.05(F). That section prohibits 2

registered sex offender from failing to notify the sheriff of a

change in any of the classes of address in R.C. 2950.05(A) which

the offender has registered with the sheriff. Defendant was

released on his own recognizance, on condition that he appear for

all proceedings in that case.

{¶ 3} Defendant failed to appear at a pretrial hearing

scheduled for September 30, 2010. He was indicted in Case No.

10CR0684 for violation of R.C. 2937.29 and 2937.99, by recklessly

failing to appear in court as was required by a condition of his

recognizance bond.

{¶ 4} The trial court subsequently dismissed the failure to

notify charge in Case No. 10CR501, finding that the indictment

in that case was insufficient to invoke the court’s jurisdiction.

Defendant then moved to dismiss the indictment in the present

case charging the failure to appear offense. The trial court

granted Defendant’s motion, finding that “an indictment or

conviction for failure to appear cannot legally stand where the

Court never had jurisdiction in the underlying case in which the

defendant allegedly failed to appear.”

{¶ 5} The State appealed the order of dismissal.

ASSIGNMENT OF ERROR

{¶ 6} “THE TRIAL COURT ERRED IN DISMISSING AN INDICTMENT FOR

FAILURE TO APPEAR BECAUSE IT LACKED JURISDICTION ON THE UNDERLYING 3

CHARGE.”

{¶ 7} The State also filed a notice of appeal from the trial

court’s order in Case No. 10CR501 dismissing the indictment

alleging a failure to notify for lack of jurisdiction. We reversed

that order, finding that an omission in the indictment which the

trial court found did not deprive the court of jurisdiction. State

v. Gaston, Clark App. No. 11CA0012, 2011-Ohio-6317. That holding

necessarily nullifies the basis on which the court dismissed the

indictment charging a failure to appear violation in the present

case.

{¶ 8} The assignment of error is sustained. The judgment of

the trial court will be reversed and the cause remanded for further

proceedings consistent with this opinion.

DONOVAN, J., And HALL, J., concur.

Copies mailed to:

Andrew R. Picek, Esq. John Vogel, Esq. Hon. Douglas M. Rastatter