This cause is before the court on appeal from the judgment of the Ottawa County Court of Common Pleas dated January 31, 1985, granting appellee's motion for suspension of his sentence pursuant to R.C. 2947.061(B).
The state made a motion seeking leave to appeal the suspension of appellee's sentence and also to stay the suspension of said sentence. The motions were granted by this court on February 1, 1985. The state assigns as error the following:
"I. The trial court erred by granting probation for a non-probat[ion]able offense.
"II. The trial court erred by failing to order and consider a presentence investigation and report.
"III. The trial court lost jurisdiction when it failed to enter its ruling within 10 days of the probation hearing."
On November 12, 1974, the appellee participated in a robbery and kidnapping. Appellee pled guilty to kidnapping in violation of R.C. 2905.01 and aggravated robbery in violation of R.C.2911.01, and was sentenced to be imprisoned not less than seven, nor more than twenty-five years as to each count with the two sentences to run consecutively. The appellee was serving his sentence for these two crimes when he filed a motion on August 14, 1984, for a suspension of his sentence pursuant to R.C.2947.061(B). The trial court granted appellee's motion for "shock" probation pursuant to R.C. 2947.061(B), and it is from that order that the state appeals.
It will not be necessary to address each of appellant's assignments of error individually because it is clear that R.C.2947.061(B), which allows "shock" probation for individuals convicted of aggravated felonies of the first, second, or third degree, does not apply to individuals
who committed an aggravated felony of the first, second, or third degree prior to July 1, 1983. Subsection (B) of the current R.C.2947.061 which allows for "shock" probation for individuals who have been convicted of aggravated felonies of the first, second, or third degree, was first enacted by Am. Sub. S.B. No. 199 (139 Ohio Laws, Part I, 523 et seq.). Unfortunately, that Act did not specify whether that subsection was to apply to offenses committed prior to the effective date of that Act. However, this situation was remedied when the legislature enacted Am. Sub. H.B. No. 269 (139 Ohio Laws, Part I, 2285). Section 4 of that Act, amending Section 10 of Am. Sub. S.B. No. 199, states, in pertinent part, the following:
"Sections * * * 2947.061 * * * of the Revised Code, as amended by Am. Sub. S.B. 199 of the 114th General Assembly, * * * shall take effect on July 1, 1983, and shall apply only to offenses committed on or after July 1, 1983. * * *" (Emphasis added.)
It is clear from the above-quoted language that "shock" probation for individuals convicted of aggravated felonies of the first, second, or third degree, pursuant to R.C. 2947.061(B), is only available to those individuals who committed the offense on or after July 1, 1983, and for which they are incarcerated. Since appellee's imprisonment was for crimes which he committed in 1974, he was unable to avail himself of the provisions for "shock" probation found in R.C. 2947.061(B). Therefore, the trial court committed error in granting "shock" probation to appellee pursuant to R.C. 2947.061(B).
Upon consideration whereof, the judgment of the Ottawa County Court of Common Pleas is reversed. The judgment of the trial court granting the motion for "shock probation" is vacated and held for naught. This cause is remanded to the trial court for any action which said court deems proper and which is not inconsistent with this opinion and for assessment of costs. Costs assessed against appellant.
Judgment reversed.
CONNORS, P.J., concurs.
WILKOWSKI, J., dissents.