In re Ex parte Sims , 61 Ohio Law. Abs. 305 ( 1950 )

OPINION

By THE COURT.

This is a motion seeking leave to appeal more than thirty days after the judgment from a sentence imposed under the Habitual Criminal Act. The record discloses that prior to this conviction the appellant was sentenced for a term of from one to seven years on a charge of grand larceny; that subsequent thereto he was convicted under the Habitual Criminal Act and sentenced thereunder, but the prior sentence of one to seven years was not vacated as required by §13744-3 GC. The judgment entry provides that the two sentences are to be served concurrently. It will be noted that the appeal was not directed to the first sentence but to the later one under the Habitual Criminal Act. We are of the opinion that the appeal is directed to the wrong case. The statute clearly provides that the sentence may be imposed after being sentenced under the prior conviction. The error committed was in the failure to vacate the prior sentence, and not the imposition of the latter one. A person who has served his entire sentence under the last conviction may be indicted and convicted as an habitual criminal. State v. Sudekatus, 72 Oh Ap 165; 27 O. O. 60, 51 N. E. (2d), 22.

An additional reason for denying the motion is that the record now discloses that on July 10, 1950, a nunc pro tunc entry was filed in case No. 29,334 which shows that the prior sentence in case No. 29,187 has been set aside and revoked and that credit has been given for the time served on the prior conviction. The error has therefore been corrected.

The motion will be overruled.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.