Rocky River v. Garneck
2013 Ohio 1565
Ohio Ct. App.2013Background
- In 2009, Garnek was hired to renovate a Rocky River condo but did not obtain a building permit.
- In 2010, the city charged Garnek with two counts of failure to obtain a permit; the project remained incomplete.
- In February 2011 Garnek pled no contest to one count; the second count was dismissed; inspector testified to code violations and lack of further work.
- Before sentencing, the court explained potential penalties and Garnek acknowledged understanding; the court postponed sentencing to allow remediation.
- In June 2011 the court sentenced Garnek to a $4,750 fine and restitution of $9,000; Garnek later moved to vacate and to stay/reconsider the sentence, which the court denied.
- Garnek appealed the trial court’s denial of those motions; this court affirmed, and Garnek sought a delayed appeal to challenge the same judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the delayed appeal was improvidently allowed | Garnek is barred after direct appeal; App.R. 5(A) inapplicable | Garnek seeks review of the final judgment via delayed appeal despite prior appeal | Delayed appeal improvidently allowed; appeal dismissed |
Key Cases Cited
- Rocky River v. Garnek, 2012-Ohio-3079 (8th Dist. No. 97540, 2012) (affirmed denials and upheld conviction; later improper to use delayed appeal)
- State v. Haynes, 111 Ohio App.3d 244 (10th Dist.1996) (delayed appeal procedure not available when direct appeal already pursued)