Appellate procedure—S.Ct.Prac.R. II(2)(A)(1), applied—Failure to file notice of appeal within forty-five days from entry of judgment being appealed divests Supreme Court of jurisdiction to hear the appeal.
Good law ✅— No negative treatment on recordhow we know
Decided 1996-01-10
How this case has been cited
Cited by 3 later decisions — most recently February 1976
3 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
.]
THE STATE OF OHIO, APPELLEE, v. DAVIE, APPELLANT.
[Cite as State v. Davie,
1996-Ohio-274
.]
Appellate procedure—S.Ct.Prac.R. II(2)(A)(1), applied—Failure to file notice of
appeal within forty-five days from entry of judgment being appealed
divests Supreme Court of jurisdiction to hear the appeal.
(No. 95-1214—Submitted September 26, 1995—Decided January 10, 1996.)
APPEAL from the Court of Appeals for Summit County, No. 16252.
___________________
{¶ 1} Appellant, Michael D. Davie, was convicted of felonious assault, two
counts of aggravated robbery, five counts of aggravated burglary, and attempted
murder with a firearm specification. The court of appeals affirmed the conviction
on February 23, 1994. State v. Davie, Summit App. No. 16252, unreported. He
subsequently filed an application to reopen his appeal under App.R. 26 (B). On
March 20, 1995, the court of appeals denied the application because appellant did
not attach a “sworn statement of the basis for the claim,” as required by App.R.
26(B)(2)(d).1
{¶ 2} Appellant then filed a motion for reconsideration, which the court of
appeals denied on May 5, 1995. Appellant then filed his notice of appeal in this
court on June 16, 1995, within forty-five days of the journal entry on
reconsideration, but more than forty-five days after the journal entry denying the
application. In addition to its brief, the state has filed a motion to dismiss because
appellant did not file the notice of appeal within forty-five days from the entry of
the judgment being appealed.
1. See State v. Lechner (1995),
, holding that this sworn
statement is mandatory.
SUPREME COURT OF OHIO
___________________
Maureen O’Connor, Summit County Prosecuting Attorney, and Philip D.
Bogdanoff, Assistant Prosecuting Attorney, for appellee.
Michael D. Davie, pro se.
___________________
Per Curiam.
{¶ 3} S.Ct.Prac.R. II(2)(A)(1) states in part:
“To perfect an appeal from a court of appeals to the Supreme Court, other
than in a certified conflict case (which is addressed in S.Ct.Prac.R. IV), the
appellant shall file a notice of appeal in the Supreme Court within 45 days from the
entry of judgment being appealed. … Except as provided in divisions (A)(2), (3),
and (4) of this section, the 45-day time period for filing a notice of appeal and
memorandum in support of jurisdiction is mandatory, and the appellant’s failure to
file within this time period shall divest the Supreme Court of jurisdiction to hear
the appeal.”
{¶ 4} S.Ct.Prac. R. II(2)(A)(2), (3), and (4) create no exception to the
jurisdictional appeal period. The judgment being appealed is the March 20, 1995
judgment denying the application to reopen. Accordingly, the state’s motion to
dismiss is sustained.
Motion to dismiss sustained.
MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY and PFEIFER, JJ.,
concur.
COOK, J., not participating.
___________________
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