Wednesday, July 21, 2010

F5 becomes an M4 (from 12 months to 30 days) (7 21 2010)

A fifth degree felony (carrying a penalty of up to 12 months in prison and a $2500 fine) was just reduced to a fourth degree misdemeanor (carrying a penalty of up to 30 days in jail and a $250 fine) because I successfully argued on appeal that the State failed to prove an essential element of the offense of breaking and entering. The State was required to prove that the structure the defendant broke into was "unoccupied." The Second District Court of Appeals agreed with me that the State failed to meet their burden and instead imposed a conviction for criminal trespassing in violation of Revised Code Section 2911.21 (a fourth degree misdemeanor). Since the defendant was sentenced to the maximum 12 months on the B&E, his sentence will essentially be reduced to the maximum 30 days for the criminal trespass. Judge Fain points out that this is an "unsatisfactory result" and he urges in a concurring opinion that the General Assembly fix this problem in the law that allowed me to help this defendant on appeal.  State v. Johnson, 2010-Ohio-3345.

Contact me if you need a Dayton Criminal Defense Attorney for your appeal or other post-conviction matter by going to my Web site and filling in the "contact me" form.
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