In re S.M.B. , 2013 Ohio 1801 ( 2013 )

[Cite as In re S.M.B., 2013-Ohio-1801.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99035
IN RE: S.M.B.
A Minor Child
JUDGMENT:
DISMISSED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL 12105009
BEFORE: Keough, J., Stewart, A.J., and Rocco, J.
RELEASED AND JOURNALIZED: May 2, 2013
ATTORNEYS FOR APPELLANT
Timothy Young
State Public Defender
By: Charlyn Bohland
Assistant State Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Callista R. Plemel
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} S.M.B., a minor, appeals her finding of delinquency.1 For the reasons that
follow, we dismiss for lack of a final, appealable order.
{¶2} On March 22, 2012, a complaint was filed in the Cuyahoga County Juvenile
Court alleging that S.M.B. was a delinquent child for committing felonious assault, in
violation of R.C. 2903.11(A)(2), a second-degree felony if committed by an adult.
Following a trial, the juvenile court adjudicated S.M.B. delinquent of felonious assault
and ordered a disposition of community control sanctions “under the supervision of a
court probation officer until such time as the probation officer files a notice of
termination of community control with the clerk.”
{¶3} It is from this order that S.M.B. now appeals raising as her sole assignment of
error that the juvenile court’s finding of delinquency of felonious assault was against the
manifest weight of the evidence. However, because the juvenile court’s order fails to
specify the time period of community control and fails to set forth any penalty for any
violation of probation, the order does not constitute a final, appealable order, and we are
without jurisdiction to review this appeal.
{¶4} Appellate courts “have such jurisdiction as may be provided by law to review
and affirm, modify, or reverse judgments or final orders of the courts of record inferior to
the court of appeals within the district[.]” Ohio Constitution, Article IV, Section 3(B)(2).
1
The parties are referred to herein by their initials or title in accordance
with this court’s established policy regarding non-disclosure of identities in juvenile
cases.
If a court’s order is not final and appealable, we have no jurisdiction to review the matter
and must dismiss the appeal. See, e.g., Eddie v. Saunders, 4th Dist. No. 07CA7,
2008-Ohio-4755, ¶11. If the parties do not raise the jurisdictional issue, we must raise it
sua sponte. See, e.g., State v. Locke, 4th Dist. No. 11CA3409, 2011-Ohio-5596, ¶ 4.
{¶5} “It is rudimentary that a finding of delinquency by a juvenile court,
unaccompanied by any disposition thereof, is not a final appealable order.” In re
Sekulich, 65 Ohio St.2d 13, 14, 417 N.E.2d 1014 (1981), citing In re Whittington, 17
Ohio App.2d 164, 245 N.E.2d 364 (5th Dist.1969), paragraph one of the syllabus.
Courts have repeatedly held that a journal entry that leaves an issue unresolved or
contemplates further action, does not constitute a final, appealable order. See, e.g., In re
J.A., 4th Dist. No. 11CA27, 2012-Ohio-2184 (journal entries that order restitution but do
not specify the amount or method of payment are not final and appealable).
{¶6} In this case, the juvenile court’s disposition leaves issues unresolved —
specifically, the duration of time S.M.B. was placed on community control and the
penalty for any noncompliance with the terms and conditions of her community control
sanctions. Moreover, the journal entry also delegates authority to a probation officer to
determine whether S.M.B. should be removed from community control. This delegation
of authority is improper. See, e.g., State v. Moore, 7th Dist. No. 00AP0741,
2002-Ohio-5047 (improper for court to delegate to probation department task of
determining amount of restitution owed); see generally State v. Fair, 2d Dist. No. 8081,
1983 Ohio App. LEXIS 13314 (Oct. 14, 1983) (trial court may not delegate its power,
authority, or discretion to any other person except where authorized by law.)
{¶7} Accordingly, we find that the court’s journal entry that leaves issues
unresolved and impermissibly delegates the juvenile court’s authority is not a final,
appealable order.
{¶8} Dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MELODY J. STEWART, A.J., and
KENNETH A. ROCCO, J., CONCUR