¶1 concurring. Although I concur in the dicta in the majority opinion and in the judgment, I would affirm because there can be no prejudicial error resulting from an erroneous sentence to the penitentiary in light of R.C. 2967.20, which provides that:
“If a prisoner is sentenced to the penitentiary or the reformatory who is not legally eligible for admission thereto, the warden or superintendent of said institution shall receive said prisoner and shall forthwith recommend to the department of rehabilitation and correction the transfer of said prisoner to the proper institution. …”
¶2 Here, the issue raised is whether defendant was eligible to be sentenced to the penitentiary. As this court indicated in State v. Ford (Dec. 4, 1979), Franklin App. No. 79AP-396, unreported, this issue is to be determined administratively pursuant to R.C. 2967.20, subsequent to any determination by the trial court or this court on appeal. Where the trial court has an option as to institutions, an issue may arise as to abuse of discretion. In this case, however, the issue is one of eligibility pursuant to R.C. 2967.20 and 5143.03.
¶3 For this reason, I concur in the judgment but feel the issue of eligibility is not conclusively before us since the trial court’s determination is not final.