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State v. Jackson

Supreme Court of Ohio

September 7, 2017

The State of Ohio, Appellant,
v.
Jackson, Appellee.

          Submitted June 6, 2017

         Appeal from the Court of Appeals for Cuyahoga County, No. 103035, 2016-Ohio-704.

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van and John F. Hirschauer, Assistant Prosecuting Attorneys, for appellant.

          Nee 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.

          Robert 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 Defender.

          Fischer, J.

         {¶ 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 further proceedings.

         I. BACKGROUND

         {¶ 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 ...


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