State v. Rabatin

2017 Ohio 7815

• Court: Ohio Court of Appeals
• Decided: September 25, 2017
• Docket: 2017-P-0036
• Status: Published

Opinion

[Cite as State v. Rabatin, 2017-Ohio-7815.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO, : MEMORANDUM OPINION

Plaintiff-Appellee, :

-vs- : CASE NO. 2017-P-0036

MARC C. RABATIN, :

Defendant-Appellant. :

Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2016 CR 00696.

Judgment: Appeal dismissed.

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

Gregory A. Price, 159 South Main Street, Suite 910, Akron, OH 44308 (For Defendant-Appellant).

COLLEEN MARY O’TOOLE, J.

{¶1} On July 7, 2017, appellant, by and through counsel, filed a notice of

appeal from a June 6, 2017 judgment entry of the Portage County Court of Common

Pleas.

{¶2} Appellant’s notice of appeal was due to be filed no later than July 6, 2017,

which was not a holiday or a weekend. Thus, his appeal was untimely filed by one day.

{¶3} App.R. 4(A)(1) states in relevant part: {¶4} “* * * [a] party who wishes to appeal from an order that is final upon its

entry shall file the notice of appeal required by App.R. 3 within 30 days of that entry.”

{¶5} App.R. 5(A) states:

{¶6} “(1) 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:

{¶7} “(a) Criminal proceedings;

{¶8} “(b) Delinquency proceedings; and

{¶9} “(c) Serious youthful offender proceedings.

{¶10} “(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. * * *.”

{¶11} In the present case, appellant has neither complied with the thirty-day rule

set forth in App.R. 4(A)(1) nor sought leave to appeal under App.R. 5(A). Thus, this

court is without jurisdiction to consider this appeal. Appellant has a remedy under

App.R. 5(A) to file an untimely appeal from a criminal judgment.

{¶12} Based upon the foregoing analysis, this appeal is hereby sua sponte

dismissed as being untimely.

{¶13} Appeal dismissed.

DIANE V. GRENDELL, J.,

TIMOTHY P. CANNON, J.,

concur.