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State v. Kaplowitz11/5/2003
Criminal law - Statutory construction - Effect of reenactment, amendment, or repeal - R.C. 1.58(B) does not apply to give a criminal defendant the benefit of a reduced sentence if, by applying it, the court alters the nature of the offense, including specifications to which the defendant pled guilty or of which he was found guilty.
Submitted June 4, 2003
. Today this court must answer the question certified for our review: " hich version [of R.C. 2903.08] applies-the version in effect at the time of the offense or the current version, effective prior to the institution of sentencing by the trial court-when application of the newer statute would change the offense from the offense indicted and to which the defendant pled[?]"
. On September 21, 1999, Mike Kaplowitz, defendant-appellant, was involved in a motor vehicle accident where both he and his passenger were injured. In April 2000, a grand jury indicted Kaplowitz on one count of aggravated vehicular assault (a fourth-degree felony), in violation of R.C. 2903.08, with a specification that he was under the influence of alcohol and a specification of a prior conviction. Kaplowitz was also indicted on one count of driving while under the influence of alcohol, in violation of R.C. 4511.19(A)(1), and one count of driving with a prohibited concentration of alcohol, in violation of R.C. 4511.19(A)(2).
. In September 2000, Kaplowitz pled guilty to aggravated vehicular assault and the specification that he was driving under the influence at the time of the offense. The remaining counts were nolled. The trial court sentenced Kaplowitz to 90 days in jail and two years of community control, suspended his driver's license for five years, and ordered him to pay restitution.
. After the offense, but before Kaplowitz was sentenced, the General Assembly amended R.C. 2903.08, effective March 23, 2000. Am.Sub.S.B. No. 107, 148 Ohio Laws, Part IV, 8701. In January 2001, the state moved to vacate Kaplowitz's sentence, which had been announced but not yet journalized, arguing that the trial court had erred by failing to apply R.C. 2903.08 as written at the time of the offense. The state requested that the trial court resentence Kaplowitz under the version of the statute effective on September 21, 1999, the date of the crime. The following day, the trial court journalized the sentence without ruling on the motion. The court later explicitly declined to rule on the motion to vacate because the state had by then filed an appeal.
. The Lake County Court of Appeals reversed the judgment of the trial court, vacated the sentence, and remanded the cause to the trial court for resentencing. The appellate court noted that the trial court should allow Kaplowitz the opportunity to withdraw his guilty plea and that the Double Jeopardy Clause would not bar a trial on the aggravated vehicular assault charge. Therefore, the defendant could choose to enter a plea or seek a trial after which, if convicted, he would be sentenced under the former sentencing structure.
. This court stayed the judgment of the court of appeals pending this appeal and acknowledged the existence of a conflict with the decision of the Court of Appeals for Muskingum County in State v. Kinder (2000), 140 Ohio App.3d 235, 746 N.E.2d 1205, concerning R.C. 2903.08: "At issue is which version applies-the version in effect at the time of the offense or the current version, effective prior to the institution of sentencing by the trial court-when application of the newer statute would change the offense from the offense indicted and to which the defendant pled." State v. Kaplowitz, 97 Ohio St.3d 1480, 2002-Ohio
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