COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68141 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JOSE ERVIN : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 28, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-270644 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. KEVIN M. CAFFERKEY, ESQ. Cuyahoga County Prosecutor 2000 Standard Building THOMAS A. REIN, ESQ. 1370 Ontario Street Assistant Prosecuting Attorney Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendant-appellant, Jose Ervin (hereinafter referred to as "appellant"), appeals from the trial court judgment of October 28, 1994, sentencing appellant to five to twenty-five years incarceration. Appellant was originally indicted on October 10, 1991, for aggravated robbery in violation of R.C. 2911.01 with a firearm specification. The jury found appellant guilty on count one of aggravated robbery but not guilty on the firearm specification. When the trial judge placed the defendant on probation the State of Ohio appealed arguing that appellant was ineligible for probation. This court agreed with the state and held that the offense for which appellant was convicted was a nonprobationable offense. The case was remanded back to the trial court for resentencing. The trial court complied with the appellate court's directive and sentenced appellant to a nonprobationable term of five to twenty-five years incarceration. Appellant timely appealed to this court raising the following assignment of error: I. THE TRIAL COURT WAS CORRECT IN PLACING THE DEFENDANT ON PROBATION WHERE HE WAS FOUND GUILTY OF AGGRAVATED ROBBERY BUT NOT GUILTY OF THE FIREARM SPECIFICATION WHEN THE JURY WAS NOT GIVEN INSTRUCTIONS THAT INCLUDED A GUN IN THE BODY OF THE INDICTMENT. In reviewing this case, we are bound by State v. Ervin (1994), 93 Ohio App.3d 178, which decided the issue of whether this defendant could receive probation. In Ervin, this court - 3 - held that this defendant, who was found guilty of aggravated robbery but not guilty of the firearm specification, was not eligible for probation. The court stated as follows: In this case, as in Pope, the jury returned a guilty verdict on one count of aggravated robbery. In doing so, the jury had to have found that the appellee had a deadly weapon, to wit, a firearm, on or about his person or under his control during the commission of the crime. Id. "This, standing alone, renders [appellee] ineligible for probation. Cf. State v. Koss (1990), 49 Ohio St.3d 213, 219-220, 551 N.E.2d 970, 975-976 (although jury acquitted defendant of the gun specification, trial court correctly determined that defendant was ineligible for probation because the offense of voluntary manslaughter was committed with a firearm)." "Thus, a criminal defendant armed with a firearm or dangerous ordnance when the offense was committed, with the exception of R.C. 2923.12 (carrying a concealed weapon), is conclusively ineligible for probation pursuant to R.C. 2951.02(F)(3), notwithstanding the absence of an express R.C. 2941.141 firearm specification." State v. Pope at 10-11. Therefore, the not guilty verdict on the firearm specification does nothing to change the status of the appellee's ineligibility for probation. Because this court has already decided whether appellant is eligible for probation, we are bound by the doctrine of res judicata in deciding this case. Res judicata precludes relitigation of a point of law or fact at issue between the same parties or their privies. Wells v. General Motors Corp (1990), 69 Ohio App.3d 433. The doctrine applies equally, moreover, to civil and criminal actions. U.S. v. American Honda Motor Co. (1968), 289 F.Supp. 277. Therefore, because the case at bar involves exactly the same parties and the same issue, the doctrine of res judicata mandates that the defendant be found not eligible for probation. - 4 - Judgment affirmed. - 5 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LEO M. SPELLACY, P.J., and BLACKMON, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and .