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State v. Curry7/28/1999
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following Disposition is made:
Pursuant to Section 2945.67(A) of the Ohio Revised, the State of Ohio has appealed from a judgment of the Summit County Court of Common Pleas. The State has appealed from an order of the trial court that sua sponte withdrew defendant's guilty plea and dismissed the indictment against defendant for grand theft. This Court reverses.
I.
On November 12, 1996, defendant Samuel J. Curry Jr. was indicted on one count of grand theft, a violation of Section 2913.02(A)(1)/(A)(3) of the Ohio Revised Code. On December 13, 1996, defendant was accepted into the Summit County Prosecutor's Office Pretrial Diversion Program ("diversion program"). Pursuant to his entry into the diversion program, defendant entered a plea of guilty to the charge of grand theft.
On January 12, 1998, defendant was discharged from the diversion program for unsuccessful completion of the program. Defendant's participation in the diversion program was terminated because he had failed to pay complete restitution to the victim. Sentencing was set for January 20, 1998. Upon representations of defendant that he would continue to make restitution to the victim, the trial court continued sentencing until February 18, 1998. At defendant's request, the matter was continued until April 1, 1998. The matter was again continued until June 10, 1998, to allow defendant additional time to make restitution to the victim.
On June 10, 1998, a sentencing hearing was held. Defendant presented evidence to the court that he had made full restitution to the victim. The court acknowledged that defendant made restitution in full and sentenced defendant to six months of unsupervised probation. After a recess, the court announced that it had reconsidered its decision. The court noted that defendant had paid the amount of restitution that he was required to pay as part of the diversion program. The court, therefore, determined that defendant had successfully completed the diversion program. As a result, the court vacated defendant's guilty plea and dismissed the case. The State timely appealed to this Court.
II.
The trial court erred when it sua sponte vacated a plea of guilty and summarily dismissed a criminal case where the defendant was previously discharged from the pretrial diversion program.
In its sole assignment of error, the State has argued that the trial court unlawfully encroached upon the authority of the prosecuting attorney by its sua sponte dismissal of the case against defendant. First, the State has asserted that defendant did not satisfactorily complete the diversion program; therefore, the trial court exceeded its authority by determining that defendant satisfactorily completed the program. Second, the State has asserted that, pursuant to Section 2935.36(D), the trial court may not dismiss a pre-trial diversion case without the recommendation of the prosecuting attorney. The State has requested this Court to reverse the decision of the trial court and remand this action for sentencing on the defendant's plea of guilty to grand theft.
Defendant has argued that the trial court's actions were not only proper, but were, in fact, required. He has asserted that the trial court must have the authority to hold a hearing on the prosecutor's attempt to remove an accused from the diversion program because a hearing was necessary to protect his rights to due process under the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution.
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