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State of Ohio v. Todd Zack

September 26, 2011

STATE OF OHIO APPELLEE
v.
TODD ZACK APPELLANT



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 98CR051714

The opinion of the court was delivered by: Whitmore, Judge.

Cite as State v. Zack,

ss:

DECISION AND JOURNAL ENTRY

{¶1} Defendant-Appellant, Todd Zack, appeals from a nunc pro tunc entry entered in the Lorain County Court of Common Pleas. This Court dismisses.

I

{¶2} In 1998, a jury found Zack guilty of numerous sexual offenses and bribery. This Court affirmed Zack's convictions on direct appeal. State v. Zack (June 14, 2000), 9th Dist. Nos. 99CA007321 & 98CA007270. On October 29, 2010, Zack filed a motion for a final appealable order, arguing that his original sentencing entry did not comply with Crim.R. 32(C) because it lacked his manner of conviction. On December 21, 2010, the trial court granted Zack's motion. Rather than reissue Zack's entire sentencing entry in a single document, however, the court ordered that Zack's judgment entry be "amended, nunc pro tunc, to correct section #1 to include that [Zack] appeared in Court for sentencing after having been found guilty by a jury of the charges."

{¶3} Zack now appeals solely from the court's December 21, 2010 nunc pro tunc entry and raises one assignment of error for our review.

II

Assignment of Error

"APPELLANT'S ENTRY OF CONVICTION IS NOT A FINAL APPEALABLE ORDER."

{¶4} In his sole assignment of error, Zack argues that the court erred by issuing an improper nunc pro tunc entry. Although the court's entry corrected the clerical error at issue, Zack argues that the court erred by not issuing a Crim.R. 32(C) compliant entry that set forth all four State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, requirements in a single document. We do not reach the merits of Zack's assignment of error.

{¶5} This Court has an obligation to raise jurisdictional issues sua sponte. McGill v. Image Scapes, L.L.C., 9th Dist. No. 09CA0038-M, 2010-Ohio-36, at ¶7, citing Lava Landscaping, Inc. v. Rayco Mfg., Inc. (Jan. 26, 2000), 9th Dist. No. 2930-M, at *1. This Court's jurisdiction is limited to the review of final orders of lower courts. Ohio Const. Art. IV, § 3(B)(2). In the absence of a final, appealable order, this Court must dismiss the appeal for lack of jurisdiction. See id. See, also, Lava Landscaping, Inc., at *1. "[I]n order to decide whether an order issued by a trial court in a criminal proceeding is a reviewable final order, appellate courts should apply the definitions of 'final order' contained in R.C. 2505.02." State v. Muncie (2001), 91 Ohio St.3d 440, 444. "An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is *** [a]n order that affects a substantial right in an action that in effect determines the action and prevents a judgment." R.C. 2505.02(B)(1).

{¶6} Crim.R. 36 permits a court to correct a clerical mistake in a judgment "at any time." The "appropriate remedy" for a clerical mistake is "generally a nunc pro tunc entry." (Internal quotations and citations omitted.) State v. Battle, 9th Dist. No. 23404, 2007-Ohio-2475, at ¶5. "[N]unc pro tunc entries are limited in proper use to reflecting what the court actually decided[.]" State ex rel. Fogle v. Steiner (1995), 74 Ohio St.3d 158, 164. That is, they "record[] what the trial court did but failed to record in the journal entry." State v. Plant, 9th Dist. No. 24118, 2008-Ohio-4424, at ΒΆ7. For that reason, a nunc pro tunc entry will relate back in time to the date of ...


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