State v. Hobbs, Unpublished Decision (6-15-2006)
State v. Hobbs, Unpublished Decision (6-15-2006)
Opinion of the Court
{¶ 2} On December 10, 2002, the Scioto County Grand Jury returned an indictment charging Hobbs with failing to register as a sex offender, in violation of R.C.
{¶ 3} On November 16, 2004, Hobbs filed a motion "to remove the requirement that he register as a sex offender pursuant to R.C.
{¶ 4} Hobbs timely appealed and assigns the following errors:
{¶ 5} "I. THE APPELLANT WAS RELEASED FROM PRISON IN 1999 FROM THE STATE OF FLORIDA WITH NO INSTRUCTION ON HOW TO REGISTER, LET ALONE, TO REGISTER AS A SEX OFFENDER AND THE APPELLANT ARGUES HE HAD NO DUTY TO SO REGISTER.
{¶ 6} II. THE APPELLANT WAS APPARENTLY REGISTERED AS A SEX OFFENDER ON MAY 10, 2001, WITHOUT THE KNOWLEDGE OR CONSENT OF THE APPELLANT, PRESUMABLY BY THE STATE OF FLORIDA, NOTWITHSTANDING THE FACT THAT THE APPELLANT HAD BEEN AN OHIO RESIDENT FOR APPROXIMATELY TWO YEARS BEFORE SAID REGISTRATION IN FLORIDA.
{¶ 7} III. APPELLANT ARGUES THAT AS HE HAD NO DUTY TO REGISTER IN THE STATE OF FLORIDA, AS INSTRUCTED TO THE APPELLANT BY THE STATE OF FLORIDA, THE STATE OF OHIO SHOULD GIVE FULL FAITH AND CREDIT TO THE STATE OF FLORIDA'S DECISION TO NOT REQUIRE THE APPELLANT TO REGISTER AS A SEX OFFENDER UPON HIS RELEASE FROM PRISON IN 1999."
{¶ 10} The state argues, in part, that Hobbs waived the argument. The state notes that he was indicted in December of 2002, pled guilty in July of 2003, but did not file a motion to have the sex offender registration requirement removed until November of 2004. He did not oppose the sex offender registration requirement during the trial court proceedings and he did not appeal the issue.
{¶ 11} Generally, there are two means by which a defendant may challenge a judgment of conviction and sentence. See Statev. Harris, Sandusky App. No. S-05-014,
{¶ 12} In the case at bar, Hobbs did not directly appeal his judgment of conviction and sentence. Furthermore, Hobbs did not identify his motion as a postconviction relief petition, and we have discovered no rule permitting a motion to remove a requirement to register as a sex offender. Cf. State v.Caldwell, Paulding App. No. 11-05-07,
{¶ 13} In any event, res judicata bars Hobbs's arguments. The doctrine of res judicata bars a party from raising issues that the party previously raised or previously could have raised. See, e.g., State v. Perry (1967),
{¶ 14} Hobbs could have raised his claim that the court improperly ordered him to register as a sex offender in a direct appeal to this court. Cf. State v. Stevenson, Summit App. No. 21953,
{¶ 15} Moreover, to the extent that Hobbs's motion is a postconviction relief petition, he did not file it timely. A petitioner must file a postconviction relief petition within one hundred eighty days after the time for filing an appeal expires, if no direct appeal is filed. See R.C.
{¶ 16} R.C.
(a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the period prescribed in division (A)(2) of section
(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted * * *.
{¶ 17} Hobbs has not argued that either of the above two circumstances justify his untimely petition and the record does not show that either one would apply. Therefore, the trial court could have denied Hobbs's motion on this basis.
{¶ 18} Accordingly, we overrule Hobbs's three assignments of error and affirm the trial court's judgment.
JUDGMENT AFFIRMED.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Ohio Supreme Court an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, J. and Kline, J.: Concur in Judgment Only.
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