State v. Coffman, Unpublished Decision (12-29-1999)

OPINION Defendant-appellant Dana E. Coffman appeals the August 12, 1999 Judgment Entry of the Delaware County Court of Common Pleas which denied appellant's Motion to Suspend Further Execution of Sentence pursuant to R.C. 2947.061(B). Plaintiff-appellee is the State of Ohio. STATEMENT OF THE CASE AND FACTS The Delaware County Grand Jury indicted appellant with one count of bribery, in violation of R.C. 2911.02. In a September 25, 1997 Judgment Entry, the trial court memorialized the jury verdict of guilty on the indictment and scheduled a sentencing hearing. In an October 21, 1997 Judgment Entry, the trial court sentenced appellant to an indefinite term of three to fifteen years. On November 7, 1997, appellant filed his Notice of Appeal with this Court. In a May 20, 1998 Opinion, this Court affirmed appellant's conviction. State v. Coffman (May 20, 1998), Delaware App. 97CAA11050, unreported. On July 20, 1999, appellant moved the trial court to suspend execution of his sentence pursuant to R.C.2947.061. In an August 12, 1999 Judgment Entry, the trial court denied appellant's motion. It is from that judgment entry appellant prosecutes this appeal, assigning as error the following: THE TRIAL COURT ERRED, IN VIOLATION OF MR. COFFMAN'S RIGHT TO DUE PROCESS OF LAW, BY DENYING MR. COFFMAN SHOCK PROBATION FOR REASONS CONTRADICTED BY THE RECORD. (ENTRIES AUGUST 12, 1999, AUGUST 27, 1999). As an initial matter, we first address whether the denial of a motion for shock probation pursuant to R.C. 2947.061 is a final appealable order. The State argues an order denying shock probation is not a final judgment and this Court should therefore dismiss the appeal for lack of jurisdiction. Appellant urges this court to find the trial court's denial of shock probation is a final appealable order. We find, based on previous decisions of this court, that the trial court's decision denying appellant's motion for shock probation is not a final appealable order. This Court has previously held that the denial of a motion for shock probation is not a final appealable order. See State v. Mackey (May 6, 1981), Stark App. No. CA 5516, unreported; State v. Gonzalez (Sept. 2, 1994), Stark App. No. 94 CA 0131, unreported; State v. Reid (Feb. 21, 1995), Fairfield App. Nos. 23 CA 1994, 35 CA 1994, unreported; and State v. Smith (March 15, 1996), Fairfield App. No. 95CA0049, unreported. Based on the rationale contained in the above cited cases, we dismiss this appeal on the basis that a denial of a motion for shock probation is not a final appealable order. Appellant's sole assignment of error is overruled and the appeal is dismissed. By: Wise, P.J. Farmer, J., concurs. Hoffman, J., dissents.