State v. Labiaux

2018 Ohio 678

• Court: Ohio Court of Appeals
• Decided: February 20, 2018
• Docket: 16 HA 0016
• Status: Published

Opinion

[Cite as State v. Labiaux, 2018-Ohio-678.] STATE OF OHIO, HARRISON COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 16 HA 0016 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION AND ) JUDGMENT ENTRY FRANK H. LABIAUX, JR. ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Appellant’s Application for Reconsideration

JUDGMENT: Application Denied.

APPEARANCES:

For Plaintiff-Appellee: Atty. T. Owen Beetham Harrison County Prosecutor Atty. Jack L. Felgenhauer Assistant Prosecuting Attorney 111 W. Warren Street P.O. Box 248 Cadiz, Ohio 43907

For Defendant-Appellant: Frank Labiaux, Pro se P.O. Box 44 Hopedale, Ohio 43976

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb Dated: February 20, 2018 [Cite as State v. Labiaux, 2018-Ohio-678.] PER CURIAM.

{¶1} Appellant Frank Labiaux requests reconsideration of our Opinion in

State v. Labiaux, 7th Dist. No. 16 HA 0016, 2017-Ohio-7760, pursuant to App.R.

26(A). Appellant argues that the forfeiture of his driver’s license violates his right to

travel. For the following reason, we deny Appellant’s application for reconsideration.

{¶2} Appellant's vehicle was pulled over in Cadiz, Ohio and he was cited for

driving without a license. The ticket specified that Appellant was required to appear

before the trial court. Appellant received a notice ordering him to appear at an

arraignment on June 21, 2016. When Appellant failed to enter an appearance, the

court gave him additional time to appear and scheduled a second arraignment for

July 5, 2016. When Appellant again failed to appear, the court issued a declaration

of forfeiture of his driver's license. We affirmed the trial court’s decision in Labiaux,

supra.

The test generally applied upon the filing of a motion for reconsideration

in the court of appeals is whether the motion calls to the attention of the

court an obvious error in its decision, or raises an issue for

consideration that was either not considered at all or was not fully

considered by the court when it should have been.

Columbus v. Hodge, 37 Ohio App.3d 68, 523 N.E.2d 515 (10th Dist.1987), paragraph

one of the syllabus.

{¶3} “Reconsideration motions are rarely considered when the movant

simply disagrees with the logic used and conclusions reached by an appellate court.”

State v. Himes, 7th Dist. No. 08 MA 146, 2010-Ohio-332, ¶ 4, citing Victory White -2-

Metal Co. v. Motel Syst., 7th Dist. No. 04 MA 245, 2005-Ohio-3828; Hampton v.

Ahmed, 7th Dist. No. 02 BE 66, 2005-Ohio-1766.

{¶4} App.R. 26(A)(1)(a) states, in relevant part: “[a]pplication for

reconsideration of any cause or motion submitted on appeal shall be made in writing

no later than ten days after the clerk has both mailed to the parties the judgment or

order in question and made a note on the docket of the mailing as required by App.

R. 30(A).” Here, the docket reflects that our Opinion was mailed to Appellant on

September 18, 2017. To be timely, an application would have been filed by

September 28, 2017. Appellant did not file his motion until October 18, 2017, thirty

days after the deadline.

{¶5} Pursuant to App.R. 14(B), an “[e]nlargement of time to file an

application for reconsideration or for en banc consideration pursuant to App. R. 26(A)

shall not be granted except on a showing of extraordinary circumstances.” Appellant

has not argued nor shown extraordinary circumstances. In fact, he does not address

the untimeliness of his application. Thus, his application is denied as untimely.

{¶6} Even if Appellant’s application were timely, the sole argument

presented in his application was not raised on direct appeal. App.R. 26 allows an

appellant to request reconsideration of an obvious error in the Court’s decision, or

raises an issue for consideration that was either not considered at all or was not fully

considered by the court when it should have been. As Appellant’s argument was not

raised by him in his direct appeal, it cannot form the basis for an application for

reconsideration. -3-

{¶7} In order to prevail on an application for reconsideration, an appellant

must demonstrate an obvious error in our decision or that an issue was raised that

was either not dealt with or was not fully considered. Appellant’s application was

untimely and is based on an argument that was not raised on direct appeal.

Accordingly, Appellant’s application for reconsideration is denied.

Waite, J., concurs.

Donofrio, J., concurs.

Robb, P.J., concurs.