Opinion

State v. Gregory

  • 108 Ohio App. 3d 264
  • 670 N.E.2d 547
Court
Ohio Court of Appeals
Filed
Dec 29, 1995
Status
Published
Author
Sundermann
On the bench
Painter, Bettman, Sundermann
Cited by
34 cases
Authority
More cited than 43.6%

holding that a defendant may institute a mandamus action against the appropriate correctional entity if that entity fails to provide a defendant with jail-time credit in conformity with the law

How later courts described this case

  • holding that a defendant may institute a mandamus action against the appropriate correctional entity if that entity fails to provide a defendant with jail-time credit in conformity with the law

Written by the judges who cited it.

The opinion

Sundermann, Judge,

dissenting.

The facts are undisputed. Appellant was held from October 17, 1994, until May 10, 1995, on both the probation violation and a new felony, trafficking. When he was sentenced on the probation violation, the court attributed the above time to the trafficking charge, for which he had been awaiting trial, and not to the probation violation.

*270

I agree with the majority that the trial court has the duty to calculate credit for jail time, and that an incorrect calculation may be appealed.

The question in this case is, if one is being held on two charges at the same time, must the court later credit the pretrial time to both charges, or may it, in its discretion, credit the time to one charge?

The majority says that the court does not have discretion to select the trafficking charge instead of the probation violation for allocation of credit. It cites no authority for this proposition. In fact, courts have always had this discretion.

In

State v. Callender

(Feb. 4, 1992), Franklin App. No. 91AP-713, unreported, 1992 WL 21247 , in affirming the trial court in a similar case, the court said that “a trial court is not required to recognize duplicate or multiple pretrial detention credit * * *. The trial court

did not abuse its discretion

in calculating one hundred three days of jail-time credit in this case.” (Emphasis added.)

In

State v. Smith

(1992), 71 Ohio App.3d 302 , 593 N.E.2d 402 , the court stated that the statute “does not entitle a defendant to jail-time credit from facts which are separate and apart from those on which his current sentence is based.” After repeating the above,

State v. Logan

(1991), 71 Ohio App.3d 292 , 593 N.E.2d 395 , goes on to say that “[s]ince the defendant was incarcerated on a prior unrelated conviction during the pendency of the present case, he is not entitled to jail-time credit.”

Id.

at 300 , 593 N.E.2d at 401.

The majority admits that if one is sentenced to consecutive terms, he would only be entitled to credit for one. In this case the charges are a probation violation on an old charge and the new felony of trafficking. Sentences on both charges would have to run consecutively under R.C. 2929.41(A)(3).

The majority wants to make the distinction between a probation violation and a later felony conviction, and a probation violation and acquittal on the later felony. There is no such distinction in the law. Whether to give “double credit” is in the discretion of the trial judge. He is the best one to make this decision knowing all the surrounding facts of the case. We should not attempt to substitute our judgment for his. “[A] trial court is not required to recognize duplicate or multiple pretrial detention credit. * * * To do so would, in effect, discriminate in favor of the defendant charged * * * with only one offense.”

Callender, swpra.

Here, appellant was being held on two separate charges, and credit could be granted on either charge or on both charges at the discretion of the trial judge, regardless of the final outcome on the merits of either charge. To do otherwise attempts to restrict long-standing judicial discretion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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