State v. Elliott , 2011 Ohio 6723 ( 2011 )

[Cite as State v. Elliott, 2011-Ohio-6723.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 2011 CA 00060
J. MARK ELLIOTT
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court,
Case No. 11 TRD 3253
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 23, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
WILLIAM PAUL BRINGMAN AMY S. WEEKS
13 East College Street 40 West Main Street, 4th Floor
Fredericktown, Ohio 43019-1192 Newark, Ohio 43055
Licking County, Case No. 2011 CA 00060 2
Wise, J.
{¶1} Defendant-Appellant J. Mark Elliott appeals the Licking County
Municipal Court’s order of forfeiture in this matter.
{¶2} Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶3} On March 30, 2011, Appellant J. Mark Elliott was driving his vehicle
eastbound on Interstate 70 in Licking County. A Sheriff’s deputy noticed Appellant's
vehicle had what the trooper believed to be excessive tinting of its driver's side
window. The deputy initiated a traffic stop of Appellant's vehicle. Upon investigation,
the trooper discovered Appellant was driving under suspension.
{¶4} As a result, Appellant was cited for violations of R.C. §4510.16
(Driving under an FRA Suspension) and §4510.14 (Driving Under an OVI
Suspension).
{¶5} On May 10, 2011, the State of Ohio filed a motion to amend the
Driving Under an OVI Suspension, a violation of R.C. §4510.14 to a charge of Driving
under suspension or in violation of license restriction, a violation §4510.11.
{¶6} The trial court granted said motion to amend and Appellant
changed his plea and entered a plea of guilty to Driving Under FRA Suspension, in
violation of R.C. §4510.16 and Driving under suspension or in violation of license
restriction, in violation of R.C. §4510.11.
{¶7} On May 10, 2011, upon conviction of §4510.11, the trial court
ordered forfeiture of Appellant's vehicle.
Licking County, Case No. 2011 CA 00060 3
{¶8} It is from this order that Appellant now appeals, assigning the
following sole error for review:
ASSIGNMENT OF ERROR
{¶9} “I. THE TRIAL COURT ERRED IN APPLYING THE CRIMINAL
FORFEITURE STATUTE TO APPELLANT’S CONVICTION OF HABITUAL
OFFENDER.”
I.
{¶10} In Appellant’s sole assignment of error, Appellant argues that the
trial court erred in ordering forfeiture in this matter. We disagree.
{¶11} In this case, Appellant pled guilty to and was convicted of R.C.
§4510.16 and R.C. §4510.11.
{¶12} Revised Code 4510.11 contains a forfeiture provision. The version
of R.C. §4510.11 in effect at the time of Appellant’s conviction and sentence provides
as follows:
{¶13} R.C. §4510.11 Driving under suspension or in violation of
license restriction
{¶14} “(A) No person whose driver's or commercial driver's license or
permit or nonresident operating privilege has been suspended under any provision of
the Revised Code, other than Chapter 4509. of the Revised Code, or under any
applicable law in any other jurisdiction in which the person's license or permit was
issued shall operate any motor vehicle upon the public roads and highways or upon
any public or private property used by the public for purposes of vehicular travel or
parking within this state during the period of suspension unless the person is granted
Licking County, Case No. 2011 CA 00060 4
limited driving privileges and is operating the vehicle in accordance with the terms of
the limited driving privileges.
{¶15} “(B) No person shall operate any motor vehicle upon a highway or
any public or private property used by the public for purposes of vehicular travel or
parking in this state in violation of any restriction of the person's driver's or
commercial driver's license or permit imposed under division (D) of section 4506.10
or under section 4507.14 of the Revised Code.
{¶16} “(C)(1) (a) Except as provided in division (C)(1)(b) of this section,
whoever violates division (A) of this section is guilty of driving under suspension, a
misdemeanor of the first degree. The court shall impose upon the offender a class
seven suspension of the offender's driver's license, commercial driver's license,
temporary instruction permit, probationary license, or nonresident operating privilege
from the range specified in division (A)(7) of section 4510.02 of the Revised Code.
{¶17} “ ***
{¶18} “(5) If the offender previously has been convicted of or pleaded
guilty to two or more violations of this section or of a substantially similar municipal
ordinance, the court, in addition to any other sentence that it imposes on the offender
and if the vehicle is registered in the offender's name, shall order the criminal
forfeiture of the vehicle involved in the offense to the state.”
{¶19} A review of Appellant’s driving record reflects that Appellant has
two previous convictions of R.C.§ 4510.11. Based on these prior convictions,
forfeiture was mandatory pursuant to R.C. 4510.11(C)(5) as set forth above.
Licking County, Case No. 2011 CA 00060 5
{¶20} Based on the foregoing, we do not find that the trial court abused its
discretion in ordering forfeiture in this matter.
{¶21} The judgment of the Municipal Court of Licking County, Ohio, is
affirmed.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
___________________________________
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JUDGES
Licking County, Case No. 2011 CA 00060 6
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
J. MARK ELLIOTT :
:
Defendant-Appellant : Case No. 2011 CA 00060
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Municipal Court of Licking County, Ohio, is affirmed.
Costs assessed to Appellant.
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JUDGES