State v. Elliott , 2018 Ohio 5329 ( 2018 )

[Cite as State v. Elliott, 2018-Ohio-5329.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : MEMORANDUM OPINION
Plaintiff-Appellee, :
-vs- : CASE NO. 2018-A-0096
RYAN A. ELLIOTT, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2012
CR 00671.
Judgment: Appeal dismissed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, Ashtabula County Courthouse, 25
West Jefferson Street, Jefferson, OH 44047-1092 (For Plaintiff-Appellee).
Ryan A. Elliott, PID# A641-812, Noble Correctional Institution, 15708 McConnelsville
Road, Caldwell, OH 43724 (Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant filed a pro se Notice of Appeal on November 27, 2018, from an
October 24, 2018 entry of the Ashtabula County Court of Common Pleas denying his
motion for court records.
{¶2} Due to the Ashtabula County Clerk of Courts’ office being closed on
November 23, 2018, a timely notice of appeal from that entry was due no later than
November 26, 2018, which was not a holiday or a weekend. Thus, the 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 in relevant part:
{¶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 to file an
untimely appeal from a criminal judgment under App.R. 5(A).
{¶12} Based on the foregoing, this appeal is hereby sua sponte dismissed as
being untimely.
THOMAS R. WRIGHT, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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