State v. Kaplowitz

Lake App. No. 2001-L-025, 2002-Ohio-4217. On review of order certifying a conflict. The court determines that a conflict exists; the parties are to brief the issue stated in the court of appeals’ Judgment Entry filed October 10, 2002, at page 2: [1481] “In his motion, Kaplowitz asks this court to certify to the Supreme Court the case of State v. Kaplowitz, 11th Dist. No. 2001-L-025, 2002-Ohio-4217, 2002 Ohio App. LEXIS 4379, as being in conflict with the Fifth District Court of Appeals holding in State v. Kinder (2000), 140 Ohio App.3d 235 [746 N.E.2d 1205]. In Kaplowitz, this court recognized the conflict with the Fifth District’s decision in Kinder concerning R.C. 2908.08. At issue is which version applies — the version in effect at the time of the offense or the current version, effective prior to the institution of sentencing by the trial court— when application of the newer statute would change the offense from the offense indicted and to which the defendant pled. Therefore, we find that a conflict of law exists. The motion to certify is granted.” (Emphasis sic.) Resnick, J., dissents, noting that the certification is improper. F.E. Sweeney, J., dissents.