Ohio Criminal Appeals Lawyer Blog

A third degree felony carries a possible penalty of up to five years in prison and up to a $10,000 fine. A third degree misdemeanor carries a possible penalty of up to 60 days in jail and up to a $500 fine. If you have to get one, take the M3.

So how did a Cuyahoga County man get his conviction reduced from a F3 to a M3? It was a gift from whoever prepared the verdict form and from the trial prosecutor who did not fix the error. The defendant was indicted for F3 possession of drugs. But the verdict form did not state a degree or aggravating circumstance to make "possession of drugs" a F3.

The "as charged in the indictment" language did not fix the problem. The instruction to the jury did not fix it either. The Eighth District Court of Appeals for Cuyahoga County found that the jury simply convicted the man of "possession of drugs" and so it entered a conviction for the least degree of that offense as is required by Ohio law. Read the decision here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

Assault is usually a first degree misdemeanor and the maximum penalty would be 180 days in jail and a 1,000 dollar fine. Assault is sometimes elevated to a fifth degree felony for which the maximum penalty is 12 months in prison and a 2,500 dollar fine. But for a conviction on an enhanced level of assault to hold up, the verdict form has to indicate that the jury found the defendant guilty of a fifth degree felony assault or it needs to state the additional element(s) that elevate it from a first degree misdemeanor. In a Scioto County case, the verdict form only stated we "find the defendant guilty of assault." Well, since assault is an M1 and the jury verdict did not indicate that the jury found the defendant guilty of a F5 or any facts that would make the assault a F5 in this case, the Fourth District Court of Appeals reversed the conviction for the F5 and remanded to the trial court with instructions to enter a conviction for a M1. Read the decision here.

Previously I wrote about how inadequate verdict forms could mean the early release of convicts. This is so because of the Ohio Supreme Court decision in State v. Pelfrey, 2007-Ohio-256. The Fifth District Court of Appeals of Richland County just reduced a fourth degree felony to a first degree misdemeanor because it was not clear from the verdict form that the jury intended to convict the defendant of the fourth degree felony version of failure to appear. And they did so even though the defendant had already been sentenced a couple times and failed to raise the issue previously. The dissenting judge did not like it as you can read in the decision in State v. Nichols, 2010-Ohio-3104, by clicking here.

Two defendants had their prison sentences reduced dramatically this week due to sloppy prosecutions and attentive appellate lawyers. At issue were the verdict forms. As Ohio Revised Code Section 2945.75(A)(2) clearly states, "A guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged."

In Gallia County, a defendant was sentenced to 10 years in prison because she possessed enough crack cocaine to make her conviction a first degree felony. But the verdict form only stated that the jury was finding her guilty of "possession of drugs" in violation of Section 2925.11(A). The least degree of that offense at the time was a third degree misdemeanor which carries a maximum of 60 days in jail. From 10 years to 60 days is not bad from the defendant's point of view and you can read the decision by the Fourth District Court of Appeals by clicking here.

In Summit County, a defendant had his prison sentence reduced from 10 years to (at most) 1 year due to a typo. The verdict form in that case - which was also a crack cocaine case - read that "we, the Jury, find the Defendant Guilty of the offense of POSSESSION OF CRACK COCAINE ... in the amount exceeding ten one hundred (100) grams." The problem is that it was supposed to read "one hundred grams" to support the conviction for the first degree felony. The Ninth District Court of Appeals decided the jury may have convicted the defendant of possessing less than one gram of crack cocaine as you can read by clicking here.

The lesson? For prosecutors it is to check the verdict forms and then re-check them a few times. And for defense lawyers on appeal it means the verdict forms should be checked and re-checked to see if this issue should be raised on appeal.