POMEROY — The Meigs County man who was sentenced to jail after reportedly not appearing as a witness in a criminal case has been granted a temporary stay of that sentence.
William Smith, 39, of Shade, was found to be in contempt at a hearing Oct. 5 after he did not appear in response to a subpoena in the criminal case against Forrest Frazier, of Guysville.
Frazier was accused of felonious assault for allegedly biting the ear of Smith. As a result of Smith’s failure to appear, the case against Frazier was dismissed.
Judge I. Carson Crow ordered Smith to serve 30 days in jail, pay a $250 fine and costs of the case for which he failed to appear as a witness.
On Friday, Smith, through his attorney Robert Bright, filed an appeal of his sentence and a motion for a stay of the sentence.
Bright’s motion states that Smith is gainfully employed and a 30-day sentence would interfere with that employment. If the stay should not be granted, Bright asked that Smith be placed in the work release program.
Typically, a request for a stay must first be presented to the trial court and subsequently denied before it is to be considered by the appeals court.
In this case, Bright noted that he filed the document with the trial court, but the judge had left for the day. Given that the motion was filed on a Friday, with Monday — the day Smith was to begin his sentence — being a holiday, the 4th District Court of Appeal took temporary action.
Fourth District Court of Appeals Judge Marie Hoover granted Smith’s motion to an extent.
“The 30-day jail sentence, fine and costs imposed by the trial court on October 7, 2016 (date the entry was filed) are temporarily stayed,” wrote Hoover.
The prosecution was given 10 days in which to file a response to the motion for a stay and at that time the court will consider the motion.
According to the appeal documents filed on Friday, the trial court erred in violating Smith’s due process by summarily finding him guilty of criminal contempt and sentencing him.
Bright states that Smith was not provided with the right to notice of the charge; right to service of notice; right to counsel; right to sufficient time to prepare defense; qualified right to a jury trial; right to call and subpoena witnesses; and right to cross examine adverse witnesses; and other rights.
Bright goes on to state that Smith was tried and convicted of indirect criminal contempt in the case in which he was a witness and not the defendant.
Bright has requested a transcript be prepared of the Oct. 5 hearing in which Smith was found to be in contempt.
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