Mentor v. Rousseau

2016 Ohio 3011

• Court: Ohio Court of Appeals
• Decided: May 16, 2016
• Docket: 2016-L-021
• Status: Published

Opinion

[Cite as Mentor v. Rousseau, 2016-Ohio-3011.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

CITY OF MENTOR, : MEMORANDUM OPINION

Plaintiff-Appellee, :

-vs- : CASE NO. 2016-L-021

KIMBERLEY J. ROUSSEAU, :

Defendant-Appellant. :

Criminal Appeal from the Mentor Municipal Court, Case No. 15 TRD 04279.

Judgment: Appeal dismissed.

Lisa M. Klammer, Mentor City Prosecutor, 8500 Civic Center Boulevard, Mentor, OH 44060 (For Plaintiff-Appellee).

Michael J. Feldman, Lallo & Feldman Co., L.P.A., Interstate Square Building I, 4230 State Route 306, #240, Willoughby, OH 44094 (For Defendant-Appellant).

COLLEEN MARY O’TOOLE, J.

{¶1} On February 29, 2016, appellant, Kimberley J. Rousseau, by and through

counsel, filed her notice of appeal from a January 27, 2016 judgment entry issued by

Mentor Municipal Court. The appealed judgment indicates that appellant was found

guilty of failure to yield and she was sentenced to a $50 fine and court costs.

{¶2} App.R. 4(A)(1) states in part:

{¶3} “[A] party who wishes to appeal from an order that is final upon its entry

shall file the notice of appeal required by App.R. 3 within 30 days of that entry.” {¶4} In this case, appellant’s notice of appeal was due no later than February

26, 2016, which was not a holiday or a weekend. Since appellant’s notice of appeal was

not filed until February 29, 2016, the appeal is untimely by three days.

{¶5} App.R. 5(A) states, in relevant part:

{¶6} “(1) After the expiration of the thirty day period provided by App.R. 4(A) for

the filing of a notice of appeal as of right, an appeal may be taken by a defendant with

leave of the court to which the appeal is taken in the following classes of cases:

{¶7} “(a) Criminal proceedings;

{¶8} “(b) Delinquency proceedings; and

{¶9} “(c) Serious youthful offender proceedings.

{¶10} “(2) A motion for leave to appeal shall be filed with the court of appeals

and shall set forth the reasons for the failure of the appellant to perfect an appeal as of

right. Concurrently with the filing of the motion, the movant shall file with the clerk of the

trial court a notice of appeal in the form prescribed by App.R. 3 and shall file a copy of

the notice of the appeal in the court of appeals. * * *”

{¶11} In the present case, appellant has neither complied with the thirty-day rule

set forth in App.R. 4(A) nor sought leave to appeal. Thus, this court is without

jurisdiction to consider the appeal. Appellant has a remedy under App.R. 5(A) to file an

untimely appeal from a criminal judgment.

{¶12} Based upon the foregoing analysis, the appeal is hereby sua sponte

dismissed as being untimely.

{¶13} Appeal dismissed.

DIANE V. GRENDELL, J.,

TIMOTHY P. CANNON, J., concur.