State v. West

613 N.E.2d 622, 66 Ohio St. 3d 508

Opinions

Douglas, J.

A review of the history of this case unearths a procedural morass. As we delve into the ultimate conclusions reached by the trial court and court of appeals, and consider the arguments posed by the parties, we uncover an almost endless array of issues. Thus, we raise, without deciding, the following questions: (1) Is the granting of shock probation an appealable order and, if so, should the state have filed a notice of appeal from the trial court’s February 28, 1991 entry? (2) Is the denial (revocation) of shock probation an appealable order? (3) Did appellee have a right to file a notice of appeal from the trial court’s April 16, 1991 entry denying (revoking) shock probation? (4) Did the court of appeals have jurisdiction to hear appellee’s May 15, 1991 appeal? (5) Did the trial court have jurisdiction (authority) to reconsider its February 28, 1991 entry? (6) Does it matter if the February 28, 1991 order is void or merely voidable? (7) How do the sections on probation (R.C. Chapter 2951) and shock probation (R.C. 2947.061) relate or interrelate? (8) Was the original conviction for aggravated robbery under the facts of this case a proper conviction?

These and a number of other questions arise and we now find ourselves in much the same position as the court of appeals on appeal and the trial court on reconsideration found themselves. Because these questions have not been directly raised, briefed or argued before us, we decline to answer the questions even though answering them might very well lead us to a different conclusion. In deciding as we do we, specifically, are not approving the procedures followed at the trial and appellate court levels.

Accordingly, and solely using our equitable powers, we affirm the judgment of the court of appeals and reinstate the trial court’s order of February 28, 1991, granting shock probation to appellee.

Judgment affirmed.

A.W. Sweeney, Resnick and F.E. Sweeney, JJ., concur. Moyer, C.J. and Wright, J., concur in judgment only. Pfeifer, J., dissents.