Oakwood v. Frailey, Unpublished Decision (11-3-2005) , 2005 Ohio 5856 ( 2005 )


Menu:
  • {¶ 25} I respectfully dissent because I believe that Frailey's voluntary payment of his fine rendered this appeal from a minor misdemeanor moot. See State v. Wilson (1975), 41 Ohio St. 2d 236,325 N.E.2d 236, syllabus. Frailey's arguments that he paid his fine involuntarily are unsupported by the record. He did not ask the court to stay execution of the sentence pending appeal, nor did he seek a stay with this court. Moreover, the majority's reliance upon Frailey's affidavit is clearly erroneous. Frailey submitted the affidavit as part of his brief in opposition to a motion to dismiss the appeal. The affidavit is not a part of the lower court record and is therefore incompetent to show his actual motivation in paying the fine. "A reviewing court cannot add matter to the record before it, which was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter." State v. Ishmail (1978), 54 Ohio St. 2d 402,377 N.E.2d 500, paragraph one of the syllabus. Without the affidavit, there is simply no evidence to support Frailey's assertion that he did not voluntarily pay his fine.

Document Info

Docket Number: No. 85973.

Citation Numbers: 2005 Ohio 5856

Judges: KENNETH A. ROCCO, J.:

Filed Date: 11/3/2005

Precedential Status: Non-Precedential

Modified Date: 4/18/2021