State v. Davis, Unpublished Decision (9-28-1999) ( 1999 )

ON MOTION FOR LEAVE TO FILE DELAYED APPEAL MEMORANDUM DECISION Appellant, David T. Davis, has filed a motion for leave to file a delayed appeal from his June 30, 1997 conviction of rape. App.R. 5(A) provides:

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. 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. * * *

Additionally, we note that the recent modifications to App.R. 5(A) allow for a delayed appeal regardless of demonstration of conceivable merit. State v. Robinson (1995), 101 Ohio App.3d 238,239. Thus, a person seeking leave to file a delayed appeal in a criminal case is no longer required to set forth the errors claimed to have occurred and the evidence relied upon to show the probability that such errors did occur.

In this case, appellant asserts that neither his attorney nor the trial court advised him of his right to appeal. Based on this assertion, we sustain appellant's motion for leave to pursue a delayed appeal.

Motion for leave to file delayed appeal sustained.

DESHLER and BROWN, JJ., concur.