¶1 dissenting.
¶2 {¶ 16} As I have noted before, Judge Harsha of the Fourth Appellate District, in a case comparing elements of another statute, has written that “[wjhile this result seems intuitively wrong, the Supreme Court’s holding in Ranee forces us to affirm the appellant’s convictions ….” 16
¶3 {¶ 17} Ranee is not just intuitively wrong, it is legally wrong. The Ohio Supreme Court has the law of double jeopardy in jeopardy of disappearing, in addition to the bollix it has made of the related problems of allied offenses and lesser-included offenses. 17 It seemed that the Supreme Court overruled Ranee, albeit by implication, in State v. Fears. 18 We so held in State v. Grant, 19 which the Supreme Court declined to review.
¶4 {¶ 18} In State v. McIntosh, 20 I wrote, “While an argument can be made that because the syllabus in Ranee was not overruled in Fears, Ranee is still viable, I prefer to conclude that the Ohio Supreme Court recognized its error; though it would be much better if that court would do so specifically.” Even though the court has cited Ranee after deciding Fears, I believe that is not necessarily sufficient to undo Fears. In Fears, the court did not even cite Ranee, though surely the court must have been aware of its own prior decisions.
¶5 {¶ 19} Therefore, I dissent and join Justice Lundberg Stratton 21 in urging the Supreme Court to revisit this area and correct its mistakes. The confusion created for the trial and appellate courts of this state should be resolved.
¶6 . State v. McIntosh (2001), 145 Ohio App.3d 567, 582, 763 N.E.2d 704, quoting State v. Shinn (Jun. 14, 2000), 4th Dist. No. 99CA29, 2000 WL 781106.
¶7 . State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294; State v. Barnes (2002), 94 Ohio St.3d 21, 759 N.E.2d 1240, especially Lundberg Stratton, J., dissenting.
¶8 . (1999), 86 Ohio St.3d 329, 344, 715 N.E.2d 136.
¶9 . (Mar. 23, 2001), 1st Dist. No. C-971001, appeal not allowed (2001), 92 Ohio St.3d 1443, 751 N.E.2d 482.
¶10 . (2001), 145 Ohio App.3d 567, 763 N.E.2d 704.
¶11 . State v. Barnes (2002), 94 Ohio St.3d 21, 759 N.E.2d 1240 (Lundberg Stratton, J., dissenting).