State v. Gause

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[Cite as State v. Gause, 182 Ohio App.3d 142, 2009-Ohio-2140.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO The STATE OF OHIO, : Appellant, : : v. APPEAL NOS. C-080601 C-080602 TRIAL NOS. B-9908286 B-9908400 D E C I S I O N. : GAUSE, : Appellee. Criminal Appeal From: Hamilton County Common Pleas Court Judgment Appealed From Is: Reversed and Cause Remanded Date of Judgment Entry on Appeal: May 8, 2009 Joseph T. Deters, Hamilton County Prosecuting Attorney, and James M. Keeling, Assistant Prosecuting Attorney, for appellant. Faulkner & Tepe and A. Norman Aubin, for appellee. M ARK P. P AINTER , Judge. {¶1} The state of Ohio appeals the resentencing of defendant-appellant James Gause, after the original sentencing court had failed to include postreleasecontrol provisions in his sentence. We hold that when the trial court has orally informed the defendant of postrelease control but the postrelease-control language is OHIO FIRST DISTRICT COURT OF APPEALS not recorded in the judgment entry, the proper remedy is to add the omitted postrelease-control language by using an entry nunc pro tunc after a hearing. {¶2} The original sentencing court, during sentencing, informed Gause that he would be placed on post-release control for a period of five years, but that notification was not reflected in the sentencing entry. The court below attempted to remedy the omission by resentencing Gause, and then it also reduced his term of incarceration. The trial court had no authority to resentence Gause. The proper remedy was to add the omitted postrelease-control language in a nunc pro tunc entry after a hearing. The trial court s subsequent sentence is therefore reversed, and the case is remanded for a R.C. 2929.191 hearing. Judgment reversed and cause remanded. HILDEBRANDT, P.J., and DINKELACKER, J., concur. 2

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