231 N.E.2d 94
No. A-221689Court of Common Pleas, Hamilton County.
Decided August 7, 1967.
Criminal law — Sentence served — Appeal moot — Dismissed unless by reason of conviction subject to other penalties.
1. Where the defendant was convicted and served the sentence, his appeal will be dismissed.
2. If the defendant by reason of his conviction becomes subject to other penalties or disabilities, his appeal may be regarded as presenting a justiciable issue notwithstanding his sentence has been served.
Mr. William A. McClain, city solicitor, and Mr. Donald E. Hardin, for appellee.
Messrs. Signer Roney, for appellant.
KEEFE, J.
On December 10, 1966, one of the judges of the Municipal Court, without jury, found the defendant-appellant guilty of violating Section 901-a5 of the Code of Ordinances of the city of Cincinnati, which provides:
“Whoever unlawfully assaults or threatens another in a menacing manner, or unlawfully strikes or wounds another, shall be fined not more than two hundred dollars ($200.00), or imprisoned not more than six months, or both.”
The sentence imposed was the maximum. Defendant appealed to this court. He is now at the Ohio Penitentiary under sentence for a conviction of murder in the first degree, without mercy, and has been there since May 8, 1967.
The superintendent of the Cincinnati Workhouse, to which the defendant was sentenced by the Municipal Court on December 10, 1966, has advised this court that the entire sentence imposed on the defendant, confinement, fine, and costs, is fully satisfied and has been since approximately the middle of July, 1967.
Since the defendant has been given full credit for the sentence imposed by the Municipal Court, this appeal has
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become abstract and academic. It is not the duty of courts to answer moot questions.
“Since the function of a court is to render judgment in actual controversies between adverse litigants, neither a reviewing court nor a court exercising original jurisdiction will concern itself with purely moot or abstract questions * * * nor will a court render a judgment or decree which cannot be made effective. Actions or opinions are moot when they are or have become fictitious, colorable, hypothetical, academic, or dead, and their distinguishing characteristic is that they involve no actual, genuine, live controversy, the decision of which definitely affects existing legal relations.” 14 Ohio Jurisprudence 2d 627, Courts, Section 196.
“It is well settled that where, by a change of circumstances or otherwise pending an appeal on questions of law, the questions which would be presented to the reviewing court have become purely academic or abstract, and any judgment which the court might render thereon would in no way avail, or be beneficial, to, any party, the proceeding will ordinarily be dismissed, because it is not the duty nor responsibility of the court to answer moot questions. So the proceeding will be dismissed if the order or judgment which the appellant seeks to reverse, not having been stayed, has been carried out or if the thing which he seeks to prevent or avoid has been accomplished, and the situation is such that reversal would be wholly ineffectual to reestablish the status quo or to afford any relief or advantage to the appellant.” 3 Ohio Jurisprudence 2d 539, Appellate Review, Section 603.
Other Ohio authorities in which the same position is taken are Miner v. Witt, 82 Ohio St. 237; Makley v. State, 128 Ohio St. 571, and State v. Sholiton, 70 Ohio Law Abs. 385, 128 N.E.2d 666.
The following decisions are in further support of my conclusion that once the sentence has been served, and the fine and costs satisfied, as here, the issues are moot.
United States Court of Appeals, Government of Virgin Islands
v. Ferrer, 275 F.2d 497:
“No controversy remains for determination and the appeal is moot.”
Supreme Court of Nevada, State v. Cohen, 45 Nev. 266, 201 P. 1027:
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“Consequently the controversy between the state and appellant involved in this appeal has been terminated as effectually as though a verdict of not guilty had been rendered. There is nothing material to be accomplished — nothing on which the judgment of this court can act effectively and work an advantage to the appellant.”
Criminal Court of Appeals of Oklahoma, Tropp v. State, 17 Okla. Cr. 702, 186 P. 737:
“The appeal is dismissed for * * * the reason that each defendant having been committed to jail under said judgment, they have long since served their respective terms of imprisonment, any legal question involved in this * * * appeal is moot.”
The rule is a good one which establishes that if a defendant by reason of a conviction becomes subject to other penalties or disabilities, the appeal may be regarded as presenting a justiciable issue notwithstanding his sentence has been served. However, the rule is not applicable here. There is no showing that the Municipal Court conviction has resulted in any collateral penalties or disabilities. It was admitted by counsel at the time this appeal was argued that at the trial of defendant for first degree murder there was absolutely no evidence presented of the Municipal Court conviction and sentence which are the subjects of this appeal.
The appeal will have to be dismissed for the reasons given.
Appeal dismissed.