State v. Harvey

This is an appeal from the trial court's dismissal of a petition for postconviction relief filed under R. C. 2953.21. For reasons assessed below, the appeal is dismissed.

I. Petitioner-appellant, Victor J. Harvey, was found guilty of second degree murder and shooting with intent to kill. His convictions were affirmed by this court in State v. Harvey (Cuyahoga Co. Ct. of Appeals No. 33157, March 6, 1975), unreported. A motion for leave to appeal from the Court of Appeals was overruled on December 15, 1975.

On June 1, 1978, petitioner filed a petition for postconviction relief in the Court of Common Pleas. The trial court denied relief by journal entry received for filing on September 7, 1978. Findings of fact and conclusions of law were filed in compliance with R. C. 2953.21(C).

No timely appeal was taken from the September 7 judgment. On February 28, 1979, petitioner's motion for leave to file a delayed appeal, pursuant to App. R. 5(A), was filed in this court. The motion was granted on April 13, 1979.

II. In State v. Milanovich (1975), 42 Ohio St.2d 46, 49, the Ohio Supreme Court noted that "an action for postconviction relief is a civil proceeding, * * *." Accordingly, App. R. 4(A) governs appeals from the denial of such relief. Notice of appeal must be filed within thirty days of the date of entry of the judgment, App. R. 4(A).

App. R. 5(A) is not applicable because that rule permits an appellate court to grant leave to file an appeal "[a]fter the expiration of the thirty day period * * *" only in criminal cases.

Consequently, this court acted without authority when it granted petitioner's motion for leave to file a delayed appeal in this case, cf. State v. Jackson (Cuyahoga Co. Ct. of Appeals Nos. 40838, 40839 and 40840, March 13, 1980), unreported. Therefore, the order of April 13, 1979, granting petitioner's motion for delayed appeal is "withdrawn as improvidently granted", id., and the appeal is dismissed.

Appeal dismissed.

JACKSON, P. J., and PRYATEL, J., concur.