State v. Otte, Unpublished Decision (7-20-2000)

Opinions

JOURNAL ENTRY AND OPINION. Defendant-appellant Gary Otte appeals the trial court's denial of his request for post-conviction relief. This court lacks jurisdiction to hear this appeal and consequently, sua sponte, dismisses this appeal.

Pursuant to App.R.4(A), a party who desires to appeal must file a notice of appeal within thirty days of the entry of judgment or order appealed. Post-conviction relief proceedings are governed by the Ohio Rules of appellate Procedure as applicable in civil actions.State v. Simmons (Feb. 27, 1997), Cuyahoga App. No. 69238, unreported, citing to State v. Nichols (1984), 11 Ohio St.3d 40. An appeal from the denial of post-conviction relief must be filed within thirty days. Simmons, supra; State v. Brown (April 30, 1998), Licking App. No. 97-CA-115, unreported; State v.Redmond (Nov. 29, 1999), Ross App. No. 98 CA 2399, unreported.

In the case sub judice, the trial court entered its final order on June 11, 1999. The court re-journalized this same order on June 28, 1999. The notice of appeal was filed on July 22, 1999. Although there is no indication that the trial court vacated the first entry, McCue v. Insurance Co. (1979), 61 Ohio App.2d 101 is instructive. The time for appeal begins to run from the time at which the original judgment is entered and not from the time of the re-entry of the second judgment. See, also, Chase v.Competitive Camera Corp. (Feb. 20, 1992), Cuyahoga App. No. 62315, unreported. Thus, this court lacks jurisdiction to hear this appeal.

Appeal dismissed.

It is ordered that appellee recover of appellant its costs herein taxed.

A certified coy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Exceptions.

JUDGE JAMES M. PORTER CONCURS; JUDGE ANNE L. KILBANE CONCURS WITH SEPARATE CONCURRING OPINION.

_________________________________ JAMES D. SWEENEY, PRESIDING JUDGE