The Franklin County Court of Appeals ruled 2 days ago that a suspended prison term that is being imposed for violating community control can run consecutive to the violating offense in another county. Here are the facts in State v. Livesay (Franklin App. 12 AP-181).
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Mr. Livesay received a suspended prison term for Receiving Stolen Property in favor of 36 months of community control. One of his community control sanctions was to serve time at CBCF. He wandered away from CBCF and apparently picked up a new felony in Delaware County. Delaware hit him with 18 months at ODRC. On his probation violation hearing, he stipulated a violation, waived second hearing, and was ordered to serve his prison term (less credit for time served) that was to run consecutive to the 18 months he was serving from Delaware County.
He appealed arguing that a 1985 Ohio Supreme Court case (State v. White) prohibited a consecutive term on his PV. The 10th District was not persuaded since they could not find any other appellate decision in Ohio over the past 27 years that applied the
White decision in the manner suggested by Mr. Livesay. The White case holds that a court cannot impose a prison term consecutive to another prison term that is not yet ordered. Livesay argued that at the date of his original sentencing there was no Delaware County case. The Court of Appeals ruled that the
date of a probation violation is imposed is the date to determine if there are any other cases that need to be ordered concurrent or consecutive, not the date of the original sentencing.
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