Harmless typographical error or improper amendment to a charged offense?
Ohio Criminal Rule 7(D) allows a trial judge to amend a complaint "provided no change is made in the name or identity of the crime charged."
Edward Madding was charged by complaint with Resisting Arrest in violation of R.C. 2921.33(A)(1) but the language of the complaint indicated he was being charged with a violation of R.C. 2921.33(B). R.C. 2921.33(A) is a second-degree misdemeanor, but Madding was charged with a first-degree misdemeanor and (B) is a first-degree misdemeanor. It appears the only thing wrong with the complaint was that it said (A)(1) instead of (B).
At the end of the trial, Madding's Dayton Criminal Defense Lawyer argued that Madding could only be convicted of R.C. 2921.33(A) which is a second-degree misdemeanor. In response, the prosecutor made a motion to amend the complaint to reflect a violation of R.C. 2921.33(B) (a first-degree misdemeanor) instead of R.C. 2921.33(A). Defense counsel objected and appealed.
Two Judges on the Second District Court of Appeals for Montgomery County decided that this was a case of a trial judge fixing "a simple typographical error which neither misleads nor prejudices the defendant." The third judge dissented and wrote that the charged offense, R.C. 2921.33(A) was a second-degree misdemeanor and it was error to allow the amendment of the offense to R.C. 2921.33(B) because the change raised the degree and therefore the identity of the offense. Read the decision here.
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