Vale Edge, Inc. v. Simms, Unpublished Decision (11-16-1999) ( 1999 )

ACCELERATED MEMORANDUM OPINION This appeal is pending upon appellant's notice of appeal and motion for delayed appeal pursuant to App.R. 5(A), both filed November 18, 1998.

Appellant is appealing a September 3, 1992 judgment entry of the Portage County Municipal Court, Ravenna Division, granting a default judgment in the amount of $689.56 plus costs and interest at ten percent against appellant and in favor of the appellee.

App.R. 5(A) provides, in part, as follows:

"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 in criminal cases, an appeal may be taken only by leave of the court to which the appeal is taken." (Emphasis added.)

Criminal actions are described in Black's Law Dictionary as a "[p]roceeding by which [a] person charged with a crime is brought to trial and either found not guilty or guilty and sentenced. An action, suit, or cause instituted to punish an infraction of the criminal laws." Black's Law Dictionary (5 Ed. 1979) 336.

Obviously, here, the judgment entry being appealed is not from a criminal case as required by App.R. 5(A). The action does not appear to have been instituted to punish an infraction of the criminal laws nor does the judgment entry indicate that the appellant was found guilty of a crime and sentenced.

In fact, the judgment entry being appealed appears to have been generated from a civil action commenced in the trial court by the appellee. Civil actions being those actions "brought to enforce, redress, or protect private rights. In general, all types of actions other than criminal proceedings." Black's Law Dictionary (5 Ed. 1979) 222.

Accordingly, appellant's attempt to utilize App.R. 5(A) to extend his time to file a notice of appeal beyond the thirty-day time limit provided for in App.R. 4(A) is ineffective since App.R. 5(A) may be utilized only to extend the time to file a notice of appeal from a judgment entry issued from a criminal action and may not be used to extend the time to appeal a judgment entry issued in a civil action.

Accordingly, appellant's motion for delayed appeal is overruled, and this appeal is dismissed.

_____________________________________________ JUDGE ROBERT A. NADER FOR THE COURT

CHRISTLEY, P.J.,

O'NEILL, J., concur.