STATE v. LAVERY, 2007-CA-34 (10-16-2007)

2007-Ohio-5549

State of Ohio Village of Granville, Plaintiff-Appellee v. William Lavery, et al., Defendant-Appellant.

No. 2007-CA-34.Court of Appeals of Ohio, Fifth District, Licking County.
DATE OF JUDGMENT ENTRY: October 16, 2007.

Appeal from the Licking County Municipal Court, Case No. 06 TRC 13704.

Reversed and Final Judgment Entered.

DOUGLAS E. SASSEN, for Plaintiff-Appellee.

DAVID B. STOKES, for Defendant-Appellant.

Before: Hon. W. SCOTT GWIN, P.J., Hon. JOHN W. WISE, J., Hon. PATRICIA A. DELANEY, J.

OPINION

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DELANEY, J.

{¶ 1} Appellant, William L. Lavery, appeals a judgment of the Licking County Municipal Court which found him guilty of violating R.C. 4511.19(A)(1)(h), operating a vehicle while under the influence, and R.C. 4511.213, failure to yield to safety vehicle.

{¶ 2} Appellant raises two assignments of error:

{¶ 3} I. THE TRIAL COURT COMMITTED PLAIN ERROR, HARMFUL ERROR AND/OR ABUSED ITS DISCRETION IN FINDING APPELLANT GUILTY AND IMPOSING SENTENCES.

{¶ 4} II. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN DENYING APPELLANT’S MOTION TO SUPPRESS.

{¶ 5} The record shows appellant originally pled not guilty, but changed his plea to no contest after the court overruled his motion to suppress.

{¶ 6} Appellee, the State of Ohio, concedes appellant’s first assignment of error and agrees the trial court did not comply with R.C. 2937.07, which mandates an explanation of facts prior to a guilty finding on a no-contest plea. Appellee also concedes double jeopardy attached and there cannot be a subsequent prosecution.

{¶ 7} Accordingly, the first assignment of error is sustained.

{¶ 8} Appellant’s second assignment of error is overruled as moot.

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{¶ 9} For the foregoing reasons, the judgment of the Licking County Municipal

Court is reversed, and pursuant to App. R. 12(B) we enter final judgment of acquittal.

By: Delaney, J., Gwin, P.J. and Wise, J. concur.

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JUDGEMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Licking County Municipal Court is reversed, and pursuant to App. R.12(B) we enter final judgment of acquittal. Costs assessed to appellee.

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