State v. Elersic, Unpublished Decision (3-19-2004)

Ohio Court of Appeals

State v. Elersic, Unpublished Decision (3-19-2004)

2004 Ohio 1707

CourtOhio Court of Appeals

DecidedMarch 19, 2004

DocketCase No. 2003-L-198.

StatusUnpublished

Cited by2 cases

This text of 2004 Ohio 1707 (State v. Elersic, Unpublished Decision (3-19-2004)) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State v. Elersic, Unpublished Decision (3-19-2004), 2004 Ohio 1707 (Ohio Ct. App. 2004).

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MEMORANDUM OPINION {¶ 1} On November 17, 2003, appellant, Shane R. Elersic, filed a notice of appeal from a September 25, 2003 judgment of the Lake County Court of Common Pleas. In that judgment, the trial court denied appellant's petition for postconviction relief. Thus, appellant's notice of appeal was filed fifty-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 compiled with Ohio Civ.R. 58(B), and the Notice of Appeal is deemed to be filed out ofrule, appellant shall attach an affidavit from the trial court stating that service was not perfected pursuant to Ohio 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 sua sponte dismissal of the appeal under Ohio 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. Stateex 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).

Ford, P.J., and Christley, J., concur.

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MEMORANDUM OPINION {¶ 1} On November 17, 2003, appellant, Shane R. Elersic, filed a notice of appeal from a September 25, 2003 judgment of the Lake County Court of Common Pleas. In that judgment, the trial court denied appellant's petition for postconviction relief. Thus, appellant's notice of appeal was filed fifty-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 compiled with Ohio Civ.R. 58(B), and the Notice of Appeal is deemed to be filed out ofrule, appellant shall attach an affidavit from the trial court stating that service was not perfected pursuant to Ohio 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 sua sponte dismissal of the appeal under Ohio 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. Stateex 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).

Ford, P.J., and Christley, J., concur.

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2004 Ohio 1707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-elersic-unpublished-decision-3-19-2004-ohioctapp-2004.

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