State v. Pavisich

2014 Ohio 5313

• Court: Ohio Court of Appeals
• Decided: December 1, 2014
• Docket: 2014-P-0028
• Status: Published

Opinion

[Cite as State v. Pavisich, 2014-Ohio-5313.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO, : MEMORANDUM OPINION

Plaintiff-Appellee, : CASE NO. 2014-P-0028 - vs - :

JAMES PAVISICH, :

Defendant-Appellant. :

Criminal Appeal from the Court of Common Pleas, Case No. 2011 CR 0349.

Judgment: Appeal dismissed.

Victor V. Vigluicci, Portage County Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

James Pavisich, pro se, PID: A604-607, Hocking Unit, P.O. Box 59, 16759 Snake Hollow Road, Nelsonville, OH 45764 (Defendant-Appellant).

COLLEEN MARY O’TOOLE, J.

{¶1} On May 29, 2014, appellant, James Pavisich, pro se, filed a Motion for

Leave to File a Delayed Appeal pursuant to App.R. 5(A). There was no judgment entry

attached to appellant’s motion from which he appeals. Also, no notice of appeal was

filed with the trial court. It appears from the trial court docket that appellant was

convicted and sentenced on September 2, 2011.

{¶2} App.R. 5(A) provides: {¶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 shall file with the clerk of the

trial court a notice of appeal in the form prescribed by App.R. 3 and shall file a copy of

the notice of the appeal in the court of appeals. The movant also shall furnish an

additional copy of the notice of appeal and a copy of the motion for leave to appeal to

the clerk of the court of appeals who shall serve the notice of appeal and the motions

upon the prosecuting attorney.” (Emphasis added.)

{¶8} In the present case, appellant has not complied with App.R. 5(A) because

he failed to file a notice of appeal in the trial court concurrently with the filing of his

motion for leave to appeal. See State v. Fisher, 46 Ohio App.2d 279 (1975). In

addition, appellant has not complied with Loc.R. 3(D)(2) of this court by attaching to

such notice of appeal a copy of the judgment entry being appealed.

{¶9} As there is no appeal to proceed upon, the motion for leave to file a

delayed appeal is overruled.

2 {¶10} We note that appellant is not barred from filing a new motion for leave to

appeal along with a notice of appeal that complies with the Ohio Rules of Appellate

Procedure and the local rules of this court.

{¶11} Appeal dismissed.

THOMAS R. WRIGHT, J., concurs,

DIANE V. GRENDELL, J., concurs in Judgment Only.