[This opinion has been published in Ohio Official Reports at
89 Ohio St.3d 1208.]
THE STATE OF OHIO, APPELLEE, v. DAWSON, APPELLANT.
[Cite as State v. Dawson., 2000-Ohio-442.]
Certification of conflict dismissed as improvidently certified due to want of a
conflict.
(No. 99-1883—Submitted April 25, 2000—Decided June 7, 2000.)
CERTIFIED by the Court of Appeals for Summit County, No. 19179.
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Michael T. Callahan, Summit County Prosecuting Attorney, and Christina
J. Marshall, Assistant Prosecuting Attorney, for appellee.
Larry D. Dawson, pro se.
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{¶ 1} The certification of conflict is dismissed, sua sponte, as having been
improvidently certified; there is a want of a conflict.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
LUNDBERG STRATTON, J., concurs separately.
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LUNDBERG STRATTON, J., concurring.
{¶ 2} I concur in the dismissal of this case for want of a conflict, and write
separately to explain why.
{¶ 3} The particular provisions of Crim.R. 33 at issue in this case are:
“(A) A new trial may be granted on the motion of the defendant for any of
the following causes affecting materially his substantial rights:
“…
“(2) Misconduct of the jury, prosecuting attorney, or the witnesses for the
state;
SUPREME COURT OF OHIO
“…
“(6) When new evidence material to the defense is discovered which the
defendant could not with reasonable diligence have discovered and produced at the
trial. When a motion for a new trial is made upon the ground of newly discovered
evidence, the defendant must produce at the hearing on the motion, in support
thereof, the affidavits of the witnesses by whom such evidence is expected to be
given ….”
{¶ 4} A motion for new trial based on newly discovered evidence must be
made within one hundred twenty days after the end of the proceedings. Crim.R.
33(B). But “[i]f it is made to appear by clear and convincing proof that the
defendant was unavoidably prevented from the discovery of the evidence upon
which he must rely, such motion shall be filed within seven days from the order of
the court finding that the defendant was unavoidably prevented from discovering
the evidence within the one hundred twenty day period.” Crim.R. 33(B).
{¶ 5} Initially, it appeared that there was a conflict between the Ninth and
Second Appellate Districts on the procedure for handling delayed motions for new
trial. The Ninth Appellate District viewed a motion for a new trial as a two-step
process, where first the defendant submits affidavits supporting his assertion of
unavoidable delay. Then, if the trial court finds that the delay was unavoidable, the
court issues an order finding that a valid basis exists to justify allowing the
defendant to file the delayed motion for new trial.
{¶ 6} However, the Second Appellate District in State v. Wright (1990), 67
Ohio App.3d 827, 828,
588 N.E.2d 930, 930-931, addressed a delayed motion for
a new trial in a single-step procedure, requiring a hearing to establish both that the
defendant was unavoidably delayed in discovering the evidence and that the newly
discovered evidence forms a sufficient basis to grant a new trial. The Second
Appellate District interpreted Crim.R. 33(B) as requiring a hearing as long as the
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January Term, 2000
motion was accompanied by affidavits that, on their face, support the assertion that
the defendant was unavoidably delayed in discovering the evidence.
{¶ 7} The Ninth Appellate District petitioned this court to certify a conflict
on the following question: “Do Crim.R. 33, 47 and 57(B), and applicable local
rules, permit a trial court to deny a motion for leave to move for a new trial without
a hearing, when that motion is premised upon:
“(1) the discovery of new evidence and is made later than one hundred
twenty days after the verdict is rendered, or
“(2) being unavoidably prevented from filing the motion and is made later
than fourteen days after the verdict is rendered,
“and affidavits attached to the motion for leave to move for a new trial
support the assertion that the movant was unavoidably prevented from timely
discovering the evidence or timely filing a motion for a new trial.”
{¶ 8} Later, however, the Second Appellate District in State v. Smith (Mar.
27, 1998), Miami App. No. 97 CA 46, unreported, 1998 WL 404458, adopted the
two-step process. “To obtain leave to file a motion for a new trial based on
prosecutorial or witness misconduct, [the defendant] had to show ‘by clear and
convincing proof’ that he had been ‘unavoidably prevented’ from filing the motion
in a timely fashion. Crim.R. 33(B). For leave to file a motion for a new trial based
on newly discovered evidence, [the defendant] needed to show ‘by clear and
convincing proof’ that he had been ‘unavoidably prevented’ from discovering such
evidence within that time period. Crim.R. 33(B).”
Id.
{¶ 9} Because the Second Appellate District ultimately adopted the correct
two-step process, I concur that there is no longer a conflict.
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