State v. Harbert, Unpublished Decision (11-13-2002)
State v. Harbert, Unpublished Decision (11-13-2002)
Opinion of the Court
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: {¶ 1} Defendant-Appellant Ralph Harbert has appealed from an order of the Summit County Court of Common Pleas that granted him two hundred eighty-eight days of credit for time served toward his sentence. Because we are without jurisdiction to review the order from which Appellant has appealed, this Court dismisses the appeal.
{¶ 3} Upon remand, a second supplemental indictment was filed against Appellant, charging him with several additional counts. Appellant subsequently pleaded guilty to three counts each of gross sexual imposition and endangering children. On July 15, 1997, the trial court sentenced Appellant to terms of two years of imprisonment for each of the six counts, to be served consecutively. The trial court's journal entry of sentence specified that Appellant's credit for time served would be calculated and ordered by a subsequent journal entry. On July 23, 1997, the court journalized an order granting Appellant two hundred eighty-eight days of credit for time served in the Summit County Jail. In separate motions filed by counsel on July 29 and September 18, 1998, Appellant moved the trial court for an order granting him additional credit for time served. The record contains no indication that the trial court ruled upon these motions for additional jail time credit.
{¶ 4} On October 17, 2001, Appellant, acting pro se, filed another motion in the trial court for additional jail time credit. In this motion, Appellant argued that he should be credited with an additional five hundred four days of time served from the imposition of his original sentence on May 18, 1995, until the second supplemental indictment was filed against him after remand on September 11, 1996.1 By an order journalized on October 31, 2001, the trial court "[u]pon further investigation" granted Appellant a total of five hundred four days of credit "for time served in the Summit County Jail." Eight days later, Appellant filed a "motion for reconsideration" of the trial court's October 31, 2001 order, arguing that he was entitled to two hundred eighty-eight days plus five hundred four days of credit, for a total of seven hundred ninety-two days. On January 4, 2002, the trial court journalized an order reducing Appellant's credit for time served to two hundred eighty-eight days. That order stated:
{¶ 5} "The additional 504 days were served at the Ohio Department of Corrections. The Summit County probation department does not calculate time served in prison.
{¶ 6} "IT IS FURTHER ORDERED that the Defendant is to submit a motion for additional credit to the Ohio Department of Corrections."
{¶ 7} Appellant has appealed from this order of the trial court granting him two hundred eighty-eight days of credit for time served, asserting one assignment of error.
{¶ 8} "THE TRIAL COURT PREJUDICIALLY ERRED IN DENYING APPELLANT A REDUCTION IN HIS PRISON TERM FOR ALL THE TIME APPELLANT WAS CONFINED FOR REASONS ARISING OUT OF THE OFFENSE FOR WHICH HE WAS CONVICTED AND SENTENCED."
{¶ 9} Before proceeding to Appellant's assignment of error, we are constrained to resolve a dispute concerning our jurisdiction to hear this appeal. On May 15, 2002, the state moved to dismiss the appeal on the ground that Appellant failed to timely appeal the trial court's order granting him two hundred eighty-eight days of jail time credit issued on July 23, 1997. Because the trial court had no authority to reconsider this final judgment, the state argued, Appellant should not be permitted to extend the time within which he can file an appeal by appealing from the order ruling on his motion for reconsideration. By an order journalized on July 17, 2002, this Court indicated that the state's motion was taken under advisement, and the issues raised therein would be considered by this Court in its determination of the appeal on the merits.
{¶ 10} Former Crim.R. 32.2(D) provided: "[I]f the defendant is committed to a penal or reformatory institution, the court shall forward a statement of the number of days confinement which the defendant is entitled by law to have credited to his minimum and maximum sentence." The trial court therefore had a duty to specify the number of days of confinement, if any, which Appellant was entitled to have credited toward his sentence.2 The trial court fulfilled this obligation by its order of July 23, 1997, which granted Appellant two hundred eighty-eight days of credit towards his sentence for time already served. Moreover, the trial court's July 23, 1997 order was final and appealable pursuant to R.C. Chapter 2505, in that it "affect[ed] a substantial right in an action that in effect determine[d] the action and prevent[ed] a judgment." R.C.
{¶ 11} Once the trial court entered its final order granting Appellant two hundred eighty-eight days of credit for time served, the burden was upon Appellant to seek judicial redress of this determination if he believed it to be in error. The Ohio Supreme Court has stated that an adequate remedy exists at law by appeal to review sentencing errors, including erroneous calculations of jail time credit. See State ex rel.Jones v. O'Connor (1999),
{¶ 12} In the case sub judice, Appellant did not appeal from the trial court's original, July 23, 1997 order granting him two hundred eighty-eight days of credit for time served. Rather, he moved the trial court to reconsider this order and grant him an additional five hundred four days of credit. In the past, this Court has held that a motion requesting the trial court to correct its determination of the number of days to be credited towards a sentence is a proper way for a defendant to seek a remedy for what he believes is an erroneous calculation. See, e.g., State v. King (Apr. 6, 1994), 9th Dist. No. 16512, at 2-3. The state's motion to dismiss, however, has compelled us to revisit this determination in light of the principles that a trial court has no authority to reconsider its final judgment in a criminal case, and a such a motion cannot be used to extend the time for filing a notice of appeal. See State ex rel. Hansen v. Reed (1992),
{¶ 13} This Court in King, as well as numerous other courts in other cases, have cited State ex rel. Corder v. Wilson (1991),
{¶ 14} "[I]mplicit in [respondents'] contentions is the possibility that the sentencing judge may make an erroneous determination [of the amount of time served for which a prisoner is entitled to credit]. This is always a possibility as to any determination, and the proper remedy is either direct appeal or a motion for correction by the trial court, if it be a mistake rather than an allegedly erroneous legal determination." (Emphasis added.) Corder,
68 Ohio App.3d at 573 .
{¶ 15} A scrupulous reading of Corder, therefore, supports the proposition that where a party challenges a trial court's calculation of jail time credit on some basis other than an erroneous legal determination, a motion for correction in the trial court is appropriate. Corder's limitation on the availability of motions to correct comports with well-settled principles regarding the inability of trial courts to reconsider final judgments, and the proscription against using motions to reconsider to extend the time for filing a notice of appeal. See State v. Shinkle (1986),
{¶ 16} In State v. Hawk (1992),
{¶ 17} To the extent that King suggests that a motion to correct is an appropriate way to seek relief from an allegedly erroneous legal determination of the number of days to be credited for time served, we overrule that aspect of King. Rather, we reaffirm that a motion to correct is appropriate only where the alleged error involves a mistake other than an allegedly erroneous legal determination. Absent any evidence that the trial court was required to grant credit for time served where it granted none, or intended to grant a different amount of credit than it awarded, a motion to correct is not appropriate. Absent such evidence, the defendant is essentially challenging an allegedly erroneous legal determination, which challenge is properly launched only upon appellate review.3
{¶ 18} In the case sub judice, there is no evidence in the record that at the time it entered its July 23, 1997 order granting Appellant two hundred eighty-eight days of credit for time served, the trial court intended to grant Appellant more days of credit. The sentencing entry journalized on July 15, 1997 provided that "credit for time served is to be calculated by the Summit County Adult Probation Department and will be forthcoming in a subsequent journal entry." Eight days later, the court entered its order, stating:
{¶ 19} "Based on an investigation by the Adult Probation Department, the Court finds that the Defendant is entitled to a TOTAL of Two Hundred Eighty-eight (288) Days of jail time credit toward the sentence imposed in this case for time served in the Summit County Jail as of the date of sentencing, July 14, 1997, to-wit:
"10/7/96 to 7/14/97 = 281 Days
"5/16/95 to 5/22/95 = 7 Days
"TOTAL 288 Days"
{¶ 20} The trial court's sentencing entry states the court's intent to consult the probation department in ascertaining the number of days of credit to which Appellant was entitled. The subsequent order granting Appellant credit for two hundred eighty-eight days states that it is based upon the investigation of the probation department. No intent to grant Appellant more than two hundred eighty-eight is apparent. Consequently, a motion to correct, reconsider, or grant additional credit was not proper; if Appellant believed that the court's calculation was in error, his appropriate remedy was by appeal to this Court.
{¶ 21} With the foregoing principles in mind, we now turn to the jurisdictional consequences of Appellant's failure to timely file a notice of appeal from the trial court's July 23, 1997 order. Because the basis of Appellant's challenge was that the trial court's order constituted an erroneous legal determination, his subsequent motions filed in the trial court were the equivalent of motions for reconsideration. See State v. Beaudry (Nov. 2, 2001), 6th Dist. No. L-01-1288, 2001 Ohio App. LEXIS 4874, at fn. 1 ("Although appellant's motion was styled as a motion for jail time credit, in essence, there was no difference between it and a motion for reconsideration of the trial court's prior ruling on appellant's first motion for jail time credit."). However, there is no rule that allows a party to move a trial court for reconsideration of a final judgment. Pitts v. Ohio Dept. ofTransp. (1981),
{¶ 22} "It follows that because a judgment entered on a motion for reconsideration is a nullity, a party cannot appeal from such a judgment." Beaudry, supra at *4 (dismissing appeal from an order denying a motion for additional jail time credit, because the motion was essentially a motion for reconsideration and the court's order denying the motion was a nullity). Consequently, this Court has no jurisdiction to hear the appeal.
{¶ 24} Appeal dismissed.
SLABY, P.J., BAIRD, J. CONCUR.
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