Submitted June 6, 2017
from the Court of Appeals for Cuyahoga County, No. 103035,
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van and John F. Hirschauer, Assistant
Prosecuting Attorneys, for appellant.
Law Firm, L.L.C., and Matthew M. Nee, for appellee.
Russell S. Bensing, urging reversal for amicus curiae Ohio
Association of Criminal Defense Lawyers.
L. Tobik, Cuyahoga County Public Defender, and Cullen G.
Sweeney and John T. Martin, Assistant Public Defenders,
urging reversal for amicus curiae Cuyahoga County Public
1} In this case, we clarify that which we believe is
already clear-any dismissal of a count in an
indictment resolves that count and does not prevent a
judgment of conviction from being final and appealable.
Accordingly, we reverse the judgment of the court of appeals
dismissing appellee Andrew L. Jackson's appeal for lack
of a final and appealable order, we reinstate Jackson's
appeal, and we remand the cause to the appellate court for
2} Jackson was indicted on two counts of kidnapping
under R.C. 2905.01(A)(2), two counts of aggravated robbery
under R.C. 2911.01(A)(1), and one count of grand theft under
R.C. 2913.02(A)(1). The indictment also included firearm and
forfeiture specifications for each count.
3} Jackson pleaded not guilty, and the case
proceeded to a jury trial. The jury returned a verdict of
guilty on the grand-theft count and aggravated-robbery
counts; however, the jury was unable to reach a verdict on
the kidnapping counts. The jury found Jackson not guilty of
all firearm specifications. The forfeiture specifications
were not submitted to the jury or to the court because
Jackson stipulated at trial that he forfeited any right,
title, interest, or claim to the handgun introduced as an
exhibit at trial.
4} After the trial court declared a mistrial on the
kidnapping counts, the state orally moved to dismiss those
counts against Jackson. The trial court granted the
state's unopposed motion.
5} At sentencing, the trial court found that the
grand-theft count and one count of aggravated robbery were
allied offenses and merged those two counts. The court
sentenced Jackson to a six-year term of incarceration on each
aggravated-robbery count to be served concurrently. The trial
court entered judgment on the convictions and included in the
judgment entry the dismissal of the kidnapping counts.
6} Jackson appealed his judgment of conviction. The
court of appeals, sua sponte, dismissed Jackson's appeal
for lack of a final, appealable order after it determined
that the trial court had dismissed the kidnapping counts
without prejudice. 2016-Ohio-704 at ¶ 5, 11. Relying on
its precedent in State v. Cole, 8th Dist. Cuyahoga
No. 88722, 2007-Ohio-3076, ¶ 8, and Fairview Park v.
Fleming, 8th Dist. Cuyahoga Nos. 77323 and 77324, 2000
Ohio App. LEXIS 5714 (Dec.7, 2000), the appellate court held
that "in a ...