City of Middleburg Heights v. D'Ettorre

I concur with the majority in its disposition of all matters save and except Assignment of Error III. I do not believe that driving without a valid driver's license, as set forth in R.C.4507.02(A)(1), merges with operating a vehicle while one's driver's license is under suspension, pursuant to R.C. 4507.02(C). The former encompasses situations where an operator was never licensed or unlicensed. *Page 710 The latter relates to a previously licensed operator whose privileges have been suspended and has failed to perfect reinstatement. The majority writes that had the reinstatement fee been paid and the suspension lifted, the appellant would be charged with neither offense. I do not disagree with the statement, but the fact is that the reinstatement fee was not paid and, therefore, the appellant was appropriately charged and convicted of both counts.

The sentencing entry of May 26, 1999 reflects that the appellant was fined $50 pursuant to R.C. 4507.02(A)(1). Although the defendant was fined $50 for the violation of R.C. 4507.02(C), the trial court immediately suspended that fine. Assuming arguendo that the counts merge for sentencing (although not specifically stated), the trial court sentenced only on the R.C. 4507.02(A)(1) infraction. Error, if any, is rendered harmless. No actual punishment having been imposed makes the remand a nullity. I would affirm in all regards.