Summary
holding that the trial court clearly intended to suspend defendant's prison sentence and place him on probation
Summary of this case from State v. FodalOpinion
No. 34654
Decided May 31, 1956.
Criminal law — Statute authorizing fine or imprisonment or both — Court may impose fine, suspend imprisonment and place defendant on probation — Judgment imposing fine and costs and placing defendant on probation — Construed as imposing fine and suspending imposition of imprisonment.
1. Where a statute authorizes the court in its discretion to impose a fine or to imprison in the penitentiary or to impose both such fine and imprisonment, such court may impose sentence as to a fine and suspend imposition of sentence as to imprisonment and place the convicted defendant on probation.
2. Where a defendant is convicted under a statute which authorizes the court in its discretion to impose a fine or to imprison in the penitentiary or to impose both such fine and imprisonment and where the judgment of such court orders such defendant to pay a fine in a certain amount and the costs of prosecution and further orders that such defendant be placed on probation for a period of three years on certain terms and conditions but does not mention suspension of imposition of sentence with respect to imprisonment, such judgment will be construed as one imposing sentence as to a fine and suspending imposition of sentence as to imprisonment and placing such defendant on probation.
APPEAL from the Court of Appeals for Huron County.
Defendant was indicted and found guilty of felonious assault as defined in Section 12423-1, General Code (now Section 2903.01, Revised Code). That statute provides that one convicted thereunder "shall be fined not less than one hundred dollars nor more than one thousand dollars or imprisoned in the penitentiary not less than one year nor more than ten years or both such fine and imprisonment in the discretion of the court."
Thereupon the Common Pleas Court on 14 September 1953 "ordered and adjudged * * * that said defendant * * * pay a fine in the sum of one thousand dollars * * * and the costs of * * * prosecution" and "that said defendant be placed on probation for a period of three (3) years on the following terms and conditions:
"(1) That said defendant make a report once a month to the sheriff of Huron County, Ohio, as to his income, conduct, profession and family life.
"(2) That said defendant refrain from violating any laws of the state of Ohio for said three (3) year period."
Section 13452-1, General Code (now Section 2951.02, Revised Code), provides so far as pertinent:
"* * * Where the defendant has pleaded, or been found guilty and it appears to the satisfaction of the judge or magistrate that the character of the defendant and the circumstances of the case are such that he is not likely again to engage in an offensive course of conduct, and the public good does not demand or require that he be immediately sentenced, such judge or magistrate may suspend the imposition of the sentence and place the defendant on probation in the manner provided by law, and upon such terms and conditions as such judge or magistrate may determine * * *."
Thereafter, on 25 July 1955, in a proceeding to revoke defendant's order of probation, the Common Pleas Court found that defendant had violated the terms and conditions of the order of probation, revoked that order and rendered a judgment sentencing defendant to the penitentiary for a period of one to ten years.
Defendant appealed from that judgment to the Court of Appeals which determined "that the * * * order of probation of * * * 14 September 1953" was "without statutory authority" was "null, void, and of no effect," and that therefore "the sentence of * * * 25 July 1955 had no foundation in law," and by its judgment ordered "that upon payment of said fine and costs or if the same have already been paid," defendant "be discharged from said pretended probation."
The cause is now before this court on appeal from that judgment of the Court of Appeals, pursuant to allowance of a motion for leave to appeal.
Mr. Bernard W. Freeman, prosecuting attorney, for appellant.
Messrs. Miller, Miller Miller, for appellee.
The judgment of the Court of Appeals was based upon the conclusion that the Common Pleas Court had endeavored to do what it was not authorized to do, i.e., to suspend a sentence after it had been imposed and thereupon to place the defendant on probation. See State v. Preston, 74 Ohio App. 318, 58 N.E.2d 694. Cf. Section 13451-8 b, General Code (now Section 2947.13, Revised Code), relative to misdemeanors. However, in our opinion, the Common Pleas Court by what it said necessarily expressed an intention (a) to impose a sentence on defendant by way of a fine for $1,000 and (b) to suspend imposition of a sentence as to imprisonment and place defendant on probation in the manner provided by law.
Section 12423-1, General Code (now Section 2903.01, Revised Code), expressly recognizes the authority of the court (a) to fine or (b) to imprison or (c) to fine and imprison in its discretion. A technical interpretation of Section 13452-1, General Code (now Section 2951.02, Revised Code), might lead to the conclusion that only imposition of "the sentence" could be suspended so that the Common Pleas Court would be required to suspend the imposition of all or none of any sentence to be imposed on a conviction under a statute such as Section 12423-1, General Code. However, Section 13452-1, General Code, authorizes suspension of imposition of the sentence and placing the defendant "on probation in the manner provided by law, and upon such terms and conditions as such judge * * * may determine." We believe these latter words sufficiently expand the authority granted so as to indicate that the General Assembly must have intended by what it said to authorize the court, in an instance such as this where the punishment that may be imposed can consist of a fine and imprisonment, to impose sentence as to the fine and suspend imposition of sentence as to imprisonment and place the defendant on probation.
It follows that the judgment of the Court of Appeals must be reversed and the cause is remanded to the Court of Appeals for consideration of errors assigned in and not passed upon by that court.
Judgment reversed.
WEYGANDT, C.J., HART, ZIMMERMAN, STEWART and BELL, JJ., concur.
MATTHIAS, J., dissents.