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State v. Butler5/10/1989
MOYER, C.J.
The sole issue presented is whether a defendant who pleads guilty to unlawful possession of a dangerous ordnance under R.C. 2923.17(A) is eligible for probation pursuant to R.C. 2951.02(F)(3).
In State v. Carter (1983), 3 Ohio St.3d 15, 3 OBR 362, 444 N.E. 2d 1334, this court was faced with the question of whether carrying a concealed weapon, R.C. 2923.12(A), is a non-probationable offense pursuant to R.C. 2951.02(F)(3) when the weapon is a firearm. The defendant in Carter was arrested for driving under the influence of alcohol, at which time he was found to have a loaded Colt .25 caliber automatic firearm concealed on his person. At the time of the Carter decision, R.C. 2951.02(F) provided:
"An offender shall not be placed on probation or otherwise have his sentence of imprisonment suspended pursuant to division (D)(2) or (4) of section 2929.51 of the Revised Code when any of the following applies:
"(3) The offense was committed while the offender was armed with a firearm or dangerous ordnance, as defined in section 2923.11 of the Revised Code." (Emphasis added.) 139 Ohio Laws, Part 1, 1297, 1347.
The defendant in Carter argued that R.C. 2951.02(F)(3), as stated above, was ambiguous and therefore must be construed strictly against the state. He contended that the General Assembly used the word "armed" rather than "in possession of" to connote more than mere possession. He suggested that to be armed, the offender must be in possession of the firearm with the intent to use it.
Notwithstanding the defendant's argument in Carter, we held that former R.C. 2951.02(F)(3) was unambiguous and as such was not subject to construction. The word "armed," we indicated, must be accorded its usual and ordinary meaning. "That meaning according to Webster's Third New International Dictionary (unabridged) is: `furnished with weapons of offense or defense: FORTIFIED, EQUIPPED.'" Id. at 16, 3 OBR at 364, 444 N.E. 2d at 1336. See, also, People, ex rel. Griffin, v. Hunt (1934), 150 Misc. 163, 270 N.Y. Supp. 248. Accordingly, we held that a person convicted of carrying a concealed weapon by virtusof having a firearm concealed on his person is armed and shall not be placed on probation pursuant to R.C. 2951.02 (F)(3).
Apparently in response to the Carter decision, the General Assembly amended R.C. 2951.02(F)(3), effective July 1, 1983. See 140 Ohio Laws, Part I, 605. The revised version reads:
"(F) An offender shall not be placed on probation or otherwise have his sentence of imprisonment suspended pursuant to division (D)(2) or (4) of section 2929.51 of the Revised Code when any of the following applies:
"* * *
"(3) The offense involved was not a violation of section 2923.12 of the Revised Code [carrying a concealed weapon] and was committed while the offender was armed with a firearm or dangerous ordnance, as defined in section 2923.11 of the Revised Code." (Emphasis added.)
Defendant argues that under the amended version of R.C. 2951.02 (F)(3), an offense is nonprobationable only when an additional offense is committed while the offender is armed. A similar argument was advanced by the defendant in Carter in urging that we adopt the statement in Columbus v. Bee (1979), 67 Ohio App.2d 65, at 74, 21 O.O. 3d 371, at 377, 425 N.E. 2d 409, at 416, that "* * * he obvious intent of the * * * [General Assembly] in enacting * * * [R.C. 2951.02(F)(3)] was to deter the use of deadly weapons in the commission of offenses and to impose a greater penalty when weapons are used * * *." This argument was rejected in Carter and must be rejected here. We hel
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