State v. Sanders , 78 Ohio App. 3d 672 ( 1992 )

This cause came on to be heard upon the appeal, the transcript of the docket, journal entries and original papers from the Hamilton County Municipal Court, the transcript of the proceedings, the briefs and the arguments of counsel. We havesua sponte removed this case from the accelerated calendar.

Defendant-appellant Archie Sanders was found guilty of receiving stolen property in violation of R.C. 2913.51 on April 16, 1984. Appellant's sentence of one hundred eighty days' incarceration was suspended, and he was placed on probation for two years. The trial court imposed the following two conditions upon appellant's probation: (1) that appellant finish his education and get a high school diploma or "GED"; and (2) that the probation be deemed "violated" if appellant was arrested for any criminal offense during the two-year period.

A probation violation was filed on July 24, 1985. On September 3, 1986, appellant was found guilty of the violation, and the trial court set sentencing for November 20, 1986. On November 20, 1986, appellant's probation was terminated and he was "committed" to serve the one-hundred-eighty-day incarceration that had initially been suspended. The trial court, however, stayed the execution of the sentence until such time as appellant received his GED.

In December 1988, appellant satisfied the trial court that he had obtained his GED. The court, however, chose not to incarcerate appellant, but instead placed him on two years' probation, with the condition that he serve two hundred hours of community service.

On October 31, 1990, a probation violation was filed, and upon finding appellant guilty of the alleged violation, the trial court, on January 17, 1991, terminated the two-year probation and again committed appellant to serve the one-hundred-eighty-day sentence originally imposed in 1984.

Appellant presents the following two assignments of error for our review:

"(1) The trial court abused its discretion when it improperly believed that it had the appropriate subject matter jurisdiction to violate appellant's probation.

"(2) The trial court abused its discretion when it maintained appellant on probation beyond the statutory limit of five years established in O.R.C. § 2951.07."

The first assignment, which essentially alleges that the trial court was without jurisdiction to violate appellant's probation in January 1991, is sustained.

R.C. 2949.05 provides that trial courts shall carry into execution the sentences or judgments which have been pronounced against defendants. While a trial court may suspend a sentence pursuant to R.C. 2929.51(D)(2) and 2951.02(A), it is well established that absent an appeal on the behalf of a defendant, a trial court has no authority to stay indefinitely the execution of an imposed sentence except upon the granting of probation or parole. State v. Kraguljac (1988), 39 Ohio App.3d 167, 530 N.E.2d 970; State v. Parks (1941), 67 Ohio App. 96, 21 O.O. 120, 36 N.E.2d 42.

In the instant action, the trial court, on November 20, 1986, upon finding appellant guilty of violating a condition of his probation, terminated appellant's probation and imposed the previously suspended one-hundred-eighty-day sentence. The record reflects that appellant did not appeal that judgment. Moreover, the trial court did not suspend the sentence and place appellant on probation at the time or "otherwise suspend the sentence," as permitted under the authority of R.C. 2929.51(D) and 2951.02, but rather, as just discussed, "committed" appellant to serve the one-hundred-eighty-day jail term. Accordingly, the trial court was required, pursuant to R.C. 2949.05, to "carry into execution" the sentence it had pronounced, and therefore it had no authority to sua sponte stay indefinitely the execution of the sentence until appellant obtained his GED. Thus, the series of stays of execution, which commenced at the time of the November 20, 1986 probation revocation and terminated upon appellant's completion of his GED in 1988, were rendered contrary to law. See Kraguljac, supra. It follows, then, that the trial court had no authority to conduct the December 20, 1988 proceedings wherein it imposed the additional two-year term of probation in lieu of execution upon the one hundred eighty-day sentence. Thus, appellant's contention that the trial court lacked jurisdiction in January 1991 to determine that appellant had violated the probation has merit.

The second assignment of error is overruled. In the preceding assignment we concluded that appellant's probation was terminated by the trial court in November 1986, and that since no appeal was taken from that order and the sentence was not suspended pursuant to R.C. 2929.51(D) and 2951.02, the previously suspended sentence should have been executed at that time and not indefinitely stayed. Accordingly, the probationary period did not extend beyond the statutory limit set forth in R.C. 2951.07.

Based upon our disposition of the first assignment of error, the judgment of the trial court is reversed, and the cause is remanded to the trial court to execute the sentence initially imposed in 1984 and ordered executed in 1986 or to take action pursuant to R.C. 2951.02.

Judgment accordingly.

SHANNON and KLUSMEIER, JJ., concur.

GORMAN, P.J., concurs in part and dissents in part.