State v. Lovett , 2013 Ohio 3515 ( 2013 )

[Cite as State v. Lovett, 2013-Ohio-3515.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26779
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
TERRANCE D. LOVETT COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2012 07 2158 (A)
DECISION AND JOURNAL ENTRY
Dated: August 14, 2013
HENSAL, Judge.
{¶1} Appellant, Terrance D. Lovett, appeals from the judgment of the Summit County
Court of Common Pleas. This Court dismisses for lack of jurisdiction because his appeal is
untimely.
I.
{¶2} On July 19, 2012, Lovett was stopped by Twinsburg Police while driving his
1999 Jeep Grand Cherokee. He had a small amount of marijuana in his pocket. Lovett’s
backseat passenger, however, had two bags of marijuana in his possession. Lovett and the
backseat passenger were arrested for drug trafficking. Police seized Lovett’s Jeep Cherokee and
$1,560.00 in cash that he had in his wallet. On September 7, 2012, he was indicted by the Grand
Jury for one count of trafficking in marijuana, a fifth degree felony. The indictment also
included two specifications that sought the forfeiture of Lovett’s Jeep Grand Cherokee and the
$1,560.00 in cash.
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{¶3} On December 7, 2012, the prosecution amended count one of the indictment to
the lesser included offense of possession of marijuana, a minor misdemeanor. Lovett pleaded
guilty to the amended charge, and both forfeiture specifications were dismissed. The trial court
ordered, inter alia, that the Jeep Grand Cherokee be returned to Lovett upon payment of tow yard
storage fees. The order regarding the vehicle was part of the sentencing entry that was
journalized on December 12, 2012.
{¶4} On December 13, 2012, Lovett filed a motion with the trial court seeking an order
that the vehicle be released to him without him having to pay the fees. He further argued that the
court should order the prosecution to pay the fees. On January 4, 2013, the trial court issued a
judgment entry that denied Lovett’s motion. Lovett filed the instant appeal on January 31, 2013,
and raises one assignment of error for this Court to review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED BY ORDERING THE APPELLANT,
TERRANCE D. LOVETT, TO PAY THE TOW YARD STORAGE FEES FOR
HIS SEIZED VEHICLE.
{¶5} Lovett argues that because he was neither found guilty nor did he plead guilty to
the trafficking charge, which gave rise to the specification that sought forfeiture of his Jeep, the
trial court should not have ordered him to pay the towing and storage costs. Lovett states in his
appellate brief that the towing and storage fees amounted to over $3,000.00. However, this
Court lacks jurisdiction to reach the merits of his assignment of error because his appeal is
untimely.
{¶6} Appellate Rule 3(A) states in part that “[a]n appeal as of right shall be taken by
filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4.”
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Appellate Rule 4 provides that the notice of appeal must be filed within 30 days of the judgment
or order appealed from unless the appealing party can establish an exception to the time limit.
“This Court has recognized that ‘this time requirement is jurisdictional and may not be extended.
Where an untimely appeal has been filed, an appellate court lacks jurisdiction to consider the
merits, and the appeal must be dismissed.’” State v. Myers, 9th Dist. Wayne No. 08CA0041,
2009-Ohio-2082, ¶ 7, quoting Metro. Bank & Trust Co. v. Roth, 9th Dist. Summit No. 21174,
2003-Ohio-1138, ¶ 15.
{¶7} Lovett’s post-conviction motion sought an order from the trial court relieving him
of the responsibility for paying the towing and storage fees as provided in the sentencing entry.
Instead of filing a direct appeal of the December 12, 2012, sentencing entry, however, Lovett
filed a motion asking the trial court to “reconsider” its order regarding the towing and storage
fees. “The general rule is that a trial court has no authority to reconsider a valid, final judgment
in a criminal case.” State v. Ford, 9th Dist. Summit No. 26466, 2012-Ohio-5050, ¶ 8, citing
State ex rel. Hansen v. Reed, 63 Ohio St.3d 597, 599 (1992). “Accordingly, ‘motions for
reconsideration of a final judgment in the trial court are a nullity.” Myers at ¶ 9, quoting Pitts v.
Ohio Dept. of Transp., 67 Ohio St.2d 378, 379 (1981).
{¶8} Lovett’s only assignment of error stems from his December 12, 2012 conviction.
He did not, however, file a notice of appeal until January 31, 2013, which was beyond the 30-day
time limit set forth in Appellate Rule 4. Lovett does not allege that the sentencing entry is not a
final, appealable order or that one of the exceptions provided in Appellate Rule 4(B) is
applicable. Therefore, this Court does not have jurisdiction to consider the merit of Lovett’s
assignment of error.
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III.
{¶9} Lovett’s appeal is dismissed as untimely, and this Court has no jurisdiction to
consider the merits of the appeal.
Appeal dismissed.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
MOORE, P. J.
CARR, J.
CONCUR.
APPEARANCES:
JOHN T. FORRISTAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.