Opinion
No. 943
Decided June 25, 1948.
Criminal procedure — What court must ask defendant before sentence pronounced — Section 13451-1, General Code, mandatory — Person guilty of misdemeanor may be sentenced in his absence, when — Juvenile Court — Aiding and abetting delinquency — Violation of provisions of Section 1639-45, General Code, a misdemeanor — Appeal — Error found in procedural matter relative to sentence — Case remanded for resentence only.
1. The provisions of Section 13451-1, General Code, are mandatory, and where a defendant is sentenced in her absence for violation of the provisions of Section 1639-45, General Code, such sentence may be set aside upon appeal on questions of law.
2. Where a reviewing court determines that no error prejudicial to defendant-appellant appears in the record except involving procedure in connection with the sentence of defendant, contrary to the provisions of Section 13451-1, General Code, the case will be remanded to the trial court for sentence only.
3. The violation of the provisions of Section 1639-45, General Code, constitutes a misdemeanor, punishable as provided for in such section.
4. If a defendant has been found guilty of committing a misdemeanor, she may be sentenced in her absence only when she has requested in writing that she be tried in her absence, and such request has been entered on the journal of the court, or if "indicted" has escaped, or forfeited her recognizance, after a jury is sworn.
APPEAL: Court of Appeals for Butler county.
Mr. Paul A. Baden, for appellee.
Messrs. Casper Casper, for appellant.
This is an appeal on questions of law from a judgment of the Juvenile Court of Butler county, in which the defendant was sentenced for violation of the provisions of Section 1639-45, General Code.
An examination of the record requires the conclusion that no error, prejudicial to the defendant, appellant herein, intervened in the trial and conviction of the defendant.
In the judgment entry of the trial court containing the sentence of the defendant, it is recited that the defendant was asked whether she had anything to say why sentence should not be pronounced. The record contained in the bill of exceptions, however, shows that the defendant was sentenced in her absence, and no claim is made that such was not the case. This being true, the mandatory provisions of Section 13451-1, General Code, were ignored and the judgment and sentence of the trial court must be set aside, and the case remanded to the trial court for resentence of the defendant, but only for such purpose. Silsby v. State, 119 Ohio St. 314, 164 N.E. 232.
It is to be noted that former Section 13694, General Code, repealed, is now Section 13451-1, General Code, except that the latter section now includes cases where the defendant is found guilty by "the finding of the court" as well as by the verdict of a jury.
The violation of the provisions of Section 1639-45, General Code, constitutes a misdemeanor. Stockum v. State, 106 Ohio St. 249, 139 N.E. 855.
In certain cases, a defendant may be tried and sentenced in her absence. Section 13442-10, General Code. However, this defendant did not request in writing to be so tried. No journal entry appears to such effect. Nor was the defendant "indicted." She was tried upon an affidavit charging a violation of Section 1639-45, General Code. In any event, she did not escape or forfeit her recognizance after a jury was sworn. The provisions of Section 13442-10, General Code, therefore, have no application to the instant case.
The judgment and sentence of the Juvenile Court of Butler county of this defendant are, therefore, set aside, vacated, and reversed, and the case is remanded to that court solely and only for the purpose of so sentencing such defendant as in the discretion of such court at that time may seem proper and in conformity to law.
Judgment reversed.
MATTHEWS, P.J., ROSS and HILDEBRANT, JJ., concur in the syllabus, opinion and judgment.