State v. Pough

Dec 12, 2003
Case No. 2003-T-0141.
Versions:2003 Ohio 6753

MEMORANDUM OPINION
{¶ 1} On October 1, 2003, appellant, Lance Pough, filed a notice of appeal from an August 29, 2003 judgment of the Trumbull County Court of Common Pleas. In that judgment, the trial court dismissed appellant's petition for postconviction relief. Thus, appellant's notice of appeal was filed thirty-three days after the judgment had been issued by the trial court.

{¶ 2} App.R. 4(A) states:

{¶ 3} "A party shall file the notice of appeal required by App.R. 3 within thirty days of the later of entry of the judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if service is not made on the party within the three day period in Rule 58(B) of the Ohio Rules of Civil Procedure."

{¶ 4} Loc.R. 5(C) of the Eleventh District Court of Appeals provides:

{¶ 5} "In the filing of a Notice of Appeal in civil cases in which the trial court clerk has not complied with Civ.R. 58(B), and the Noticeof Appeal is deemed to be filed out of rule, appellant shall attach an affidavit from the trial court clerk stating that service was not perfected pursuant to App.R. 4(A). The clerk shall then perfect service and furnish this court with a copy of the appearance docket in which date of service has been noted. Lack of compliance shall result in the suasponte dismissal of the appeal under App.R. 4(A)." (Emphasis sic.)

{¶ 6} In the present case, appellant has not complied with the thirty-day rule set forth in App.R. 4(A) nor has appellant alleged that there was a failure by the trial court clerk to comply with Civ.R. 58(B). The time requirement is jurisdictional in nature and may not be enlarged by an appellate court. State ex rel. Pendell v. Adams Cty. Bd.of Elections (1988), 40 Ohio St.3d 58, 60; App.R. 14(B).

{¶ 7} Accordingly, this appeal is, sua sponte, dismissed pursuant to App.R. 4(A).

{¶ 8} The appeal is dismissed.

Appeal dismissed.

Judith A. Christley and William M. O'Neill, JJ., concur.