State v. Stone , 2013 Ohio 5782 ( 2013 )

[Cite as State v. Stone, 2013-Ohio-5782.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 13CA010400
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE COURT OF
MICHAEL STONE COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellant CASE No. 12CR084240
DECISION AND JOURNAL ENTRY
Dated: December 30, 2013
HENSAL, Judge.
{¶1} Michael Stone appeals an order of the Lorain County Court of Common Pleas that
denied his amended motion for jail time credit. For the following reasons, we dismiss the
appeal.
I.
{¶2} In December 2011, the Elyria police department arrested Mr. Stone for burglary.
He spent eight days in jail before being released on bond. He later pleaded guilty to the charge,
and, in November 2012, the trial court sentenced him to three years of community control, which
included a six-month term in the county jail.
{¶3} In January 2013, Mr. Stone filed a pro se motion for jail time credit, arguing that
he had not received credit for the time he spent in jail before being released on bond. He filed a
second pro se motion for jail time credit in March 2013. A week later, his lawyer filed a motion
for jail time credit, and, in April 2013, amended that motion. The trial court considered the
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amended motion, but denied it, concluding that jail time that is imposed as part of a community
control sanction is not subject to a jail time credit. Mr. Stone has appealed, assigning as error
that the court incorrectly denied his motion.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S AMENDED
MOTION FOR JAIL TIME CREDIT.
{¶4} Mr. Stone argues that, under Revised Code Section 2949.08(C)(1), he is entitled
to credit for the time he spent in jail before being released on bond. Section 2949.08(C)(1)
provides that, “[i]f [a] person is sentenced to a jail for a felony * * *, the jailer in charge * * *
shall reduce the sentence of [the] person delivered into the jailer’s custody * * * by the total
number of days the person was confined for any reason arising out of the offense for which the
person was convicted and sentenced * * *.”
{¶5} Although Section 2949.08(C)(1) requires a jailer to reduce an inmate’s jail term,
“it is the trial court’s responsibility to ‘calculate the amount of jail time credit and include that in
the sentencing order.’” State v. Daniels, 9th Dist. Summit. No. 26406, 2013-Ohio-358, ¶ 18,
quoting State v. Keith, 9th Dist. Lorain No. 08CA009362, 2009-Ohio-76, ¶ 6. In Keith, this
Court explained that, “[b]ecause the number of days of credit to which a defendant is entitled to
must be stated in the trial court’s sentencing entry, in order to challenge the trial court’s
calculation of jail time credit, an appellant must appeal the trial court’s entry imposing sentence.”
Id. at ¶ 8. A subsequent motion for credit is, in essence, a motion to reconsider the court’s final
judgment. Id. Since a motion for reconsideration of a final judgment is a nullity, the trial court’s
ruling on the motion is also a nullity, and “a party cannot appeal from such a judgment.” Id.,
quoting State v. Harbert, 9th Dist. Summit No. 20955, 2002-Ohio-6114, ¶ 25. But see State v.
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Papczun, 9th Dist. Summit No. 26560, 2013-Ohio-1162, ¶ 12 (Belfance, J., concurring in
judgment only) (suggesting that a trial court may have limited jurisdiction to correct a jail-time
credit error upon consideration of a motion filed under Section 2929.19(B)(2)(g)(iii)). In
accordance with Daniels and Keith, we conclude that we are without jurisdiction to consider this
appeal.
III.
{¶6} Mr. Stone has not appealed from a final appealable order or judgment. The
appeal is dismissed.
Appeal dismissed.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
MOORE, P. J.
WHITMORE, J.
CONCUR.
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APPEARANCES:
RICHARD S. RAMSEY, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.