[Cite as State v. Sherman,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Julie A. Edwards, J. : Hon. Patricia A. Delaney, J. v. : : Case No. 2011-CA-0012 PATRICK R. SHERMAN : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas Case No. 2009-CR-28H

JUDGMENT: DISMISSED

DATE OF JUDGMENT ENTRY: November 7, 2011

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

DANIEL J. BENOIT RANDALL E. FRY Assistant Richland County Prosecutor 10 West Newlon Place 38 South Park Street Mansfield, Ohio 44902 Mansfield, Ohio 44902 [Cite as State v. Sherman,

.]

Delaney, J.

{¶ 1} On January 7, 2009, appellant was indicted by the Richland County Grand

Jury on one count of having weapons while under disability, a felony of the third degree,

with a firearm specification (Count 1); one count of carrying a concealed weapon, a

felony of the fourth degree (Count 2); one count of improper handling of a firearm in a

motor vehicle, a felony of the fourth degree (Count 3); two counts of trafficking in drugs,

felonies of the second and third degree, with forfeiture specifications for $1,255.00 in

cash (Counts 4 and 5), and two counts of possession of drugs, felonies of the second

and fourth degrees, with specifications for $1,255.00 in cash (Counts 6 and 7).

{¶ 2} Appellant initially entered into a plea agreement with the State, but this

Court found the plea was not entered knowingly or intelligently and the trial court erred

in accepting the plea. State v. Sherman, 5th Dist. No. 2009-CA-132,

.

The matter was remanded to the trial court.

{¶ 3} Following a jury trial, appellant was found guilty on Counts 1, 2, 3, 6 and

7. The jury hung on Counts 4 and 5. A sentencing hearing was held on January 21,

2011. At that time, the State indicated it would retry appellant on Counts 4 and 5. The

same day, appellant filed his notice of appeal.

{¶ 4} Appellant raises three Assignments of Error:

{¶ 5} “I. THE TRIAL COURT ERRED IMPOSING FINES AS PART OF THE

DEFENDANT-APPELLANT’S SENTENCE WITHOUT CONSIDERING THE

DEFENDANT-APPELLANT’S PRESENT AND FUTURE ABILITY TO PAY THE FINES. Richland County, Case No. 2011-CA-0012 3

{¶ 6} “II. THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT-

APPELLANT’S REQUEST TO DISCHARGE HIM FOR VIOLATING HIS SPEEDY

TRIAL RIGHTS PURSUANT TO OHIO REVISED CODE SECTION 2945.71 AND OHIO

REVISED CODE SECTION 2945.73

{¶ 7} “III. THE TRIAL COURT ERRED TO THE DEFENDANT-APPELLANT’S

PREJUDICE BY OVERRULING THE DEFENDANT-APPELLANT’S MOTION TO

SUPPRESS.

{¶ 8} Before considering appellant’s assignments of error, we must first

determine whether appellant’s appeal has been taken from a final, appealable order.

See, State ex rel. White v. Cuyahoga Metro. Housing Auth.,

,

(whether subject matter jurisdiction properly lies may be raised sua

sponte by an appellate court).

{¶ 9} “Appellate courts have jurisdiction to review the final orders or judgments

of lower courts within their appellate districts.” Section 3(B)(2), Article IV, Ohio

Constitution. Absent a final order, an appellate court has no jurisdiction to review a

matter and such matter must be dismissed. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am.

(1989),

,

; Renner’s Welding and Fabrication, Inc. v.

Chrysler Motor Corp. (1996),

,

.

{¶ 10} This Court has consistently held that in a criminal matter, if a trial court

fails to dispose of all the criminal charges, the order appealed from is not a final,

appealable order. State v. Rothe, 5th Dist. No. 2008 CA 00044, 2009-Ohio 1852; State

v. Robinson, 5th Dist. No.

; State v. Huntsman (March 13, 2000), 5th

Dist. No. 1999-CA-00282. Richland County, Case No. 2011-CA-0012 4

{¶ 11} In

, we stated:

{¶ 12} “In the case of a hung jury, jeopardy does not terminate when a hung jury

is discharged, rather the case against the defendant remains pending until the

remaining charge is either retried and/or dismissed with prejudice. State v. Cole,

Cuyahoga App. No. 88722,

. Furthermore, although a dismissal of the

hung jury charge may be contemplated on the record, unless the dismissal is

documented by a signed journal entry which is filed with the court, the order of the trial

court remains interlocutory and is not a final, appealable order”, citing Huntsman, supra.

{¶ 13} In this case, the record reflects the jury was unable to reach a verdict on

the drug trafficking charges (Counts 4 and 5), and the State indicated it intended to retry

the appellant on the charges. The record reflects that the drug trafficking charges have

not been dismissed and the State has asked the trial court to schedule the charges for

trial. Therefore, the judgment entry appealed from is not a final, appealable order and

the appeal must dismissed. See also, State v. Clay, 11th Dist. No. 2009-T-0126, 2010-

Ohio-4558; State v. Sanchez, 2nd Dist. No. 2006-CA-154,

. Richland County, Case No. 2011-CA-0012 5

{¶ 14} Accordingly, the appeal is dismissed for lack of a final, appealable order.

By: Delaney, J.

Gwin, P.J. and

Edwards, J. concur.

PATRICIA A. DELANEY

W. SCOTT GWIN

JULIE A. EDWARDS [Cite as State v. Sherman,

.]

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : v. : JUDGMENT ENTRY : PATRICK R. SHERMAN : : Defendant-Appellant : Case No. 2011-CA-0012 :

For the reasons stated in our accompanying Memorandum-Opinion on file, the

appeal is dismissed. Costs assessed to appellant.

_________________________________ PATRICIA A. DELANEY

_________________________________ W. SCOTT GWIN

_________________________________ JULIE A. EDWARDS