State v. Gaston ( 2011 )

[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
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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
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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