[Cite as State v. Howse, 2011-Ohio-6682.]


STATE OF OHIO                    )                     IN THE COURT OF APPEALS
                                 )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

STATE OF OHIO                                          C.A. No.    11CA010009

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
ALVERNO M. HOWSE, JR.                                  COURT OF COMMON PLEAS
                                                       COUNTY OF LORAIN, OHIO
        Appellant                                      CASE No.   09CR078921

                                 DECISION AND JOURNAL ENTRY

Dated: December 27, 2011



        CARR, Judge.

        {¶1}    Appellant, Alverno Howse, Jr., appeals his conviction in the Lorain County Court

of Common Pleas. This Court dismisses the appeal.

                                                  I.

        {¶2}    Howse was indicted on one count of tampering with evidence and one count of

reckless homicide. Both counts carried firearm specifications. A jury found Howse guilty of all

charges. On March 16, 2010, the trial court issued a judgment entry of conviction and sentence,

ordering restitution but failing to specify the amount or recipient(s).    Howse appealed his

conviction. This Court dismissed the appeal by journal entry for lack of a final, appealable

order. State v. Howse (Dec. 27, 2010), 9th Dist. No. 10CA009800.

        {¶3}    On May 5, 2011, the trial court issued an order after a hearing, addressing only

the issue of restitution. Howse again appealed.
                                                  2


                                                 II.

       {¶4}    Howse challenges his conviction by way of five assignments of error which we

decline to restate here. On the date scheduled for oral argument, Howse’s attorney presented this

Court with a purported final judgment of conviction which imposed a sentence and fully resolved

the issue of restitution. The judgment entry of conviction and sentence was issued by the trial

court on November 23, 2011, during the pendency of this appeal.

       {¶5}    As a preliminary matter, this Court is obligated to raise sua sponte questions

related to our jurisdiction. Whitaker-Merrell Co. v. Geupel Constr. Co., Inc. (1972), 29 Ohio

St.2d 184, 186. This Court has jurisdiction to hear appeals only from final judgments. Article

IV, Section 3(B)(2), Ohio Constitution; R.C. 2501.02. In the absence of a final, appealable

order, this Court must dismiss the appeal for lack of subject matter jurisdiction.            Lava

Landscaping, Inc. v. Rayco Mfg., Inc. (Jan. 26, 2000), 9th Dist. No. 2930-M.

       {¶6}    The Ohio Supreme Court has held that “[a] judgment of conviction is a final

appealable order under R.C. 2505.02 when it sets forth (1) the guilty plea, the jury verdict, or the

finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of the

judge; and (4) entry on the journal by the clerk of court. (Crim.R. 32(C), explained.)” State v.

Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, at syllabus. The May 5, 2011 restitution order

alone does not constitute a final, appealable judgment of conviction. Accordingly, this Court

lacks jurisdiction to address the merits of the appeal.

       {¶7}    Presumably recognizing the lack of a final, appealable judgment of conviction,

Howse sought such a final judgment on November 23, 2011. However, it is well established

that, once a case has been appealed, the trial court loses jurisdiction except to take action in aid

of the appeal. State ex rel. Special Prosecutors v. Judges, Court of Common Pleas (1978), 55
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Ohio St.2d 94, 97. The trial court only retains jurisdiction over issues not inconsistent with the

appellate court’s jurisdiction to reverse, modify, or affirm the judgment from which a party has

appealed. Id. The trial court’s issuance of a judgment of conviction during the pendency of an

appeal from a defendant’s conviction is inherently inconsistent with this Court’s jurisdiction.

Accordingly, the November 23, 2011 judgment entry is a nullity and cannot serve as a

mechanism to retroactively establish finality with respect to Howse’s appeal.

                                                                                Appeal dismissed.




       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    DONNA J. CARR
                                                    FOR THE COURT


BELFANCE, P. J.
DICKINSON, J.
CONCUR

APPEARANCES:

AARON T. BAKER, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
