State v. Fink, Unpublished Decision (9-29-2006)

2006 Ohio 5180

• Court: Ohio Court of Appeals
• Decided: September 29, 2006
• Docket: No. 2006-A-0035.
• Status: Unpublished

Opinion

MEMORANDUM OPINION {¶ 1} On June 19, 2006, appellant, Alan D. Fink, filed a pro se motion for a delayed appeal, pursuant to App.R. 5(A), from his judgment of conviction and sentence issued by the trial court on August 29, 2005.

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

{¶ 3} "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:

{¶ 4} "(a) Criminal proceedings;

{¶ 5} "(b) Delinquency proceedings; and

{¶ 6} "(c) Serious youthful offender proceedings.

{¶ 7} "(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 shallfile with the clerk of the trial court a notice of appeal in theform prescribed by App.R. 3 and shall file a copy of the noticeof the appeal in the court of appeals." (Emphasis added.)

{¶ 8} Appellant did not file a notice of appeal in the trial court concurrently with the filing of his motion for leave to appeal. See State v. Weaver (1997), 119 Ohio App.3d 494.

{¶ 9} Therefore, his motion is procedurally defective, and he has failed to invoke this Court's jurisdiction. Accordingly, it is ordered that appellant's motion for leave to file a delayed appeal is hereby overruled.

{¶ 10} Appeal dismissed.

Cynthia Westcott Rice, J., Colleen Mary O'Toole, J., concur.