State v. Nutter
2016 Ohio 8291
| Ohio Ct. App. | 2016Background
- The State appealed a trial-court journal entry that found the State failed to show probable cause that Nichole Nutter violated community control/judicial release.
- The State filed a notice of appeal but did not file a separate motion for leave to appeal under R.C. 2945.67(A) and App.R. 5(C).
- Upon review, the appellate court questioned whether the entry was appealable as of right under R.C. 2945.67 and ordered the State to brief the jurisdictional issue.
- The State conceded it lacked an appeal of right and, in its memorandum, attempted to “move for leave” by including a one‑sentence request rather than filing a proper, separate App.R. 5(C) motion.
- The State failed to comply with App.R. 5(C)’s requirements (no formal motion filed, no affidavits/record showing probability of error, no supporting brief, and no concurrent filing of the notice of appeal with a motion for leave).
- The appellate court concluded it lacked jurisdiction due to those procedural defects and dismissed the appeal, denying the State’s motion for leave.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State properly sought leave to appeal a non‑enumerated trial-court order | State attempted to cure absence of a motion by including a request for leave in its memorandum | Nutter relied on State's failure to follow App.R. 5(C) and jurisdictional requirements | Court held State did not properly move for leave and thus had no appellate jurisdiction; appeal dismissed |
| Whether App.R. 5(C) requires strict compliance when State seeks leave to appeal | State argued leave should be granted despite procedural defects | Nutter argued strict compliance is mandatory per precedent | Court held App.R. 5(C) must be strictly followed; noncompliance deprives court of jurisdiction |
| Whether the appealed journal entry fell within R.C. 2945.67(A) as an appeal of right | State conceded the entry was not one of the enumerated categories | Nutter argued appeal of right was inapplicable | Court accepted State's concession and treated the appeal as requiring leave |
| Whether the court should exercise discretion to allow late/deficient filing | State effectively requested leave in its brief | Nutter opposed curing procedural defects post hoc | Court denied leave and dismissed the appeal for lack of jurisdiction |
Key Cases Cited
- State v. Slatter, 66 Ohio St.2d 452 (recognizing the State’s appeal rights under R.C. 2945.67)
- State v. Matthews, 81 Ohio St.3d 375 (defining the limited categories for the State’s appeal of right)
- State v. Keeton, 18 Ohio St.3d 379 (State may appeal by leave any nonfinal adverse decision)
- State v. Fisher, 35 Ohio St.3d 22 (Appellate rule compliance required when State seeks leave to appeal)
- State ex rel. T.L.M. v. Judges of First Dist. Court of Appeals, 147 Ohio St.3d 25 (strict enforcement of App.R. 5; lack of compliance deprives court of jurisdiction)
- State ex rel. Steffen v. Court of Appeals, First Appellate Dist., 126 Ohio St.3d 405 (failure to timely and concurrently file motion for leave and notice of appeal is fatal)