observing that two of the appellant's assignments of error, which challenged his underlying conviction and the continuing viability of this Court's earlier opinion in his direct appeal, were ‘the logical extension of the Ohio Supreme Court's decisions in State v. Simpkins, 117 Ohio St.3d 420 , 884 N.E.2d 568 , 2008-Ohio- 1197, and State v. Bezak, 114 Ohio St.3d 94 , 868 N.E.2d 961 , 2007-Ohio-3250 .’
How later courts described this case
- observing that two of the appellant's assignments of error, which challenged his underlying conviction and the continuing viability of this Court's earlier opinion in his direct appeal, were ‘the logical extension of the Ohio Supreme Court's decisions in State v. Simpkins, 117 Ohio St.3d 420 , 884 N.E.2d 568 , 2008-Ohio- 1197, and State v. Bezak, 114 Ohio St.3d 94 , 868 N.E.2d 961 , 2007-Ohio-3250 .’
Written by the judges who cited it.
The opinion
Dickinson, J.,
concurring.
{¶ 15} Fischer’s first two assignments of error are the logical extension of the Ohio Supreme Court’s decisions in
State v. Simpkins,
117 Ohio St.3d 420 , 2008-Ohio-1197 , 884 N.E.2d 568 , and
State v. Bezak,
114 Ohio St.3d 94 , 2007-Ohio-3250 , 868 N.E.2d 961 . As noted by Justice Lanzinger in her dissent in
Simpkins,
however, “[t]he holding that a sentence imposed with a missing mandatory term is void rather than voidable * * * obscures the distinction between these two legal concepts in the context of a criminal case.”
Simpkins,
117 Ohio St.3d 420 , 2008-Ohio-1197 , 884 N.E.2d 568 , at ¶ 40 (Lanzinger, J., dissenting). The trial court had subject-matter jurisdiction when it sentenced Fischer, and its failure to include a mandatory term in that sentence rendered the sentence voidable, not void.
{¶ 16} Abraham Lincoln, when accused of changing his position, said he would rather be right some of the time than wrong all the time. I urge the Ohio Supreme Court to again look at the distinction between void and voidable in this context.