State Ex Rel. Perotti v. Altiere, Unpublished Decision (4-1-2005)

2005 Ohio 1578

Opinion

MEMORANDUM OPINION {¶ 1} This matter is before this Court on the January 19, 2005 motion of Appellee, Sheriff Altiere, to dismiss this appeal as being untimely. This case began with Appellant, John W. Perotti, filing a complaint for injunctive relief and for civil rights violations pursuant to Section 1983, Title 42 U.S. Code on August 2, 2004. On September 22, 2004, the trial court dismissed the complaint. Instead of filing an appeal in this court, appellant waited and filed a motion for a delayed appeal in the trial court on November 8, 2004. That was overruled by the trial court on November 17, 2004.

{¶ 2} There are two problems with appellant's actions. First, a motion for a delayed appeal must be filed in the appellate court rather than the common pleas court. App.R. 5(A)(2). Thus, the trial court had no choice but to overrule appellant's motion, which it did on November 17, 2004. However, this court will treat appellant's motion for a delayed appeal as though it had been filed in this court on November 8, 2004.

{¶ 3} The second, and more serious problem, is that the underlying action is civil rather than criminal. There are no provisions in the appellate rules to file a delayed appeal in a civil case. An appeal must be filed within thirty days of the judgment being appealed. App.R. 4(A). The time requirement is jurisdictional in nature and may not be enlarged by an appellate court. State ex rel. Pendell v. Adams Cty. Bd. ofElections (1988) 40 Ohio St.3d 58, 60; App.R. 14(B).

{¶ 4} Based on the foregoing analysis, appellant's motion for delayed appeal is overruled and appellee's motion to dismiss this appeal is hereby granted.

{¶ 5} Appeal dismissed.

O'Neill, J., O'Toole, J., concur.