State v. Williams

Defendant was convicted as a habitual criminal under Section2961.12, Revised Code, by the Common Pleas Court of Hamilton County on October 5, 1965. The case was tried to the court without the intervention of a jury.

No motion for a new trial was filed, but on October 21, 1965, defendant filed two papers each of which he termed "Motion to Reconsider" in which he moved the court to reconsider its overruling his motion for a "directed verdict of dismissal" and setting forth his reasons why the court should grant his motions.

On October 25, 1965, the court granted a new trial without specifying in writing the causes for which such new trial was granted.

On November 15, 1965, defendant filed his notice of appeal setting forth his grounds therefor.

The state of Ohio filed in this court a motion to dismiss the appeal.

We find from the record that the motion to dismiss is not well taken and the same is hereby overruled. Section 2321.17 of the Revised Code provides: "When a new trial is granted, the court shall specify in writing the causes for which such new trial is granted." In the case at bar, this provision of the statute was not followed.

In the case of Goode v. Fraley, 8 Ohio App.2d 23, this exact situation was presented to the Franklin County Court of Appeals which overruled the motion to dismiss and held that a mandatory duty is placed upon the trial judge to set forth his reasons for granting a new trial. When this duty is done by the trial court in this case, the appeal on the merits can be perfected. See, also, Price v. McCoy Sales Service, Inc., 2 Ohio St.2d 131.

This cause is remanded to the trial court with instructions to amend its entry granting a new trial setting forth its reasons for granting same, in accordance with Section 2321.17 of the Revised Code.

Judgment accordingly.

HILDEBRANT, P. J., and HOVER, J., concur.