State v. Goss, Unpublished Decision (12-15-2006)

Ohio Court of Appeals

State v. Goss, Unpublished Decision (12-15-2006)

2006 Ohio 6693

CourtOhio Court of Appeals

DecidedDecember 15, 2006

DocketNo. 2006-T-0102.

StatusUnpublished

This text of 2006 Ohio 6693 (State v. Goss, Unpublished Decision (12-15-2006)) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State v. Goss, Unpublished Decision (12-15-2006), 2006 Ohio 6693 (Ohio Ct. App. 2006).

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MEMORANDUM OPINION {¶ 1} On September 12, 2006, appellant, Timothy Goss, filed a motion for leave to file a delayed appeal pursuant to App.R. 5(A). The appealed judgment is a July 21, 2006 decision issued by the Trumbull County Court of Common Pleas which denied appellant's motion to modify his sentence.

{¶ 2} On September 20, 2006, appellee, State of Ohio, filed a response in opposition to the motion indicating that the delayed appeal should be denied because the appealed order is not a final appealable order. Specifically, appellee indicates that appellant's motion to modify sentence in the trial court was actually a motion for judicial release, and the denial of such a motion does not affect a substantial right and constitute a final appealable order. In support of its argument, appellee cites State v. Brown, 11th Dist. No. 2004-T-0001,2004-Ohio-1433.

{¶ 3} For the following reasons, we agree with appellee. In State v.Coffman, 91 Ohio St.3d 125, 2001-Ohio-296, the Supreme Court of Ohio expressly held that "a trial court's denial of shock probation is never a final appealable order." Id. at 126. Every appellate court in Ohio that has addressed this issue after Coffman has held that that the same logic is applicable to a denial of a motion for judicial release since it mirrors shock probation. State v. Ingram, 10th Dist. No. 03AP-149,2003-Ohio-5380; State v. Greene, 2d Dist. No. 02-CA-17, 2002-Ohio-2595;State v. Galbreath (June 11, 2001), 12th Dist. No. CA2000-10-078, 2001 Ohio App. LEXIS 2607. Since there is no right to judicial release, the denial of a motion for judicial release cannot affect a "substantial right" as that term is defined in R.C. 2505.02 (A)(1).

{¶ 4} Based upon the foregoing analysis, appellant's motion for leave to file a delayed appeal is hereby overruled.

{¶ 5} Appeal dismissed.

DONALD R. FORD, P.J., DIANE V. GRENDELL, J., concur.

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MEMORANDUM OPINION {¶ 1} On September 12, 2006, appellant, Timothy Goss, filed a motion for leave to file a delayed appeal pursuant to App.R. 5(A). The appealed judgment is a July 21, 2006 decision issued by the Trumbull County Court of Common Pleas which denied appellant's motion to modify his sentence.

{¶ 2} On September 20, 2006, appellee, State of Ohio, filed a response in opposition to the motion indicating that the delayed appeal should be denied because the appealed order is not a final appealable order. Specifically, appellee indicates that appellant's motion to modify sentence in the trial court was actually a motion for judicial release, and the denial of such a motion does not affect a substantial right and constitute a final appealable order. In support of its argument, appellee cites State v. Brown, 11th Dist. No. 2004-T-0001,2004-Ohio-1433.

{¶ 3} For the following reasons, we agree with appellee. In State v.Coffman, 91 Ohio St.3d 125, 2001-Ohio-296, the Supreme Court of Ohio expressly held that "a trial court's denial of shock probation is never a final appealable order." Id. at 126. Every appellate court in Ohio that has addressed this issue after Coffman has held that that the same logic is applicable to a denial of a motion for judicial release since it mirrors shock probation. State v. Ingram, 10th Dist. No. 03AP-149,2003-Ohio-5380; State v. Greene, 2d Dist. No. 02-CA-17, 2002-Ohio-2595;State v. Galbreath (June 11, 2001), 12th Dist. No. CA2000-10-078, 2001 Ohio App. LEXIS 2607. Since there is no right to judicial release, the denial of a motion for judicial release cannot affect a "substantial right" as that term is defined in R.C. 2505.02 (A)(1).

{¶ 4} Based upon the foregoing analysis, appellant's motion for leave to file a delayed appeal is hereby overruled.

{¶ 5} Appeal dismissed.

DONALD R. FORD, P.J., DIANE V. GRENDELL, J., concur.

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