State v. Harvey

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtDAY; JACKSON, P. J., and PRYATEL
Citation428 N.E.2d 437,68 Ohio App.2d 170
Decision Date10 April 1980
Parties, 22 O.O.3d 235 The STATE of Ohio, Appellee, v. HARVEY, Appellant.

Page 170

68 Ohio App.2d 170
428 N.E.2d 437, 22 O.O.3d 235
The STATE of Ohio, Appellee,
v.
HARVEY, Appellant.
Court of Appeals of Ohio, Eighth District, Cuyahoga County.
April 10, 1980.
Syllabus by the Court

1. Postconviction relief is a civil proceeding.

2. App.R. 4(A) mandates that civil appeals be filed within thirty days of the entry of judgment or order from which appeal is taken.

3. App.R. 5(A) is not applicable to appeals from postconviction proceedings because that rule permits an appellate court to grant leave to file an appeal after the expiration of thirty days only in criminal cases; hence, a court of appeals has no jurisdiction of an appeal from a denial of postconviction relief in which the notice was filed more than thirty days after the entry of judgment.

[428 N.E.2d 438] John T. Corrigan, Pros. Atty., for appellee.

William F. Chinnock, Jr., Cleveland, for appellant.

DAY, Judge.

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

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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, 325 N.E.2d 540, 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.

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34 practice notes
  • State v. Michael B. Buhrman, 97-LW-3447
    • United States
    • United States Court of Appeals (Ohio)
    • September 12, 1997
    ...214, 224, 624 N.E.2d 210. Post-conviction proceedings, however, are civil rather than criminal in character, State v. Harvey (1980), 68 Ohio App.2d 170, 22 O.O.3d 235, 428 N.E.2d 437, and the plain error rule has been found to not be favored in civil cases. Goldfuss v. Davidson (1997), 79 O......
  • Ewing v. McMackin, No. 85-3252
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • September 3, 1986
    ...of his post-conviction motions. Id. at 125. 15 Because the post-conviction proceeding was civil, rather than criminal, State v. Harvey, 68 Ohio App.2d 170, 428 N.E.2d 437 (1980), Ewing, of course, had no Sixth Amendment right to counsel nor that such counsel be constitutionally effective, S......
  • Strickland v. Marshall, No. C-1-83-321.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • April 11, 1986
    ...which provides some discretion in a felony case in which the required notice was not timely filed, does not apply. Cf. State v. Harvey, 68 Ohio App.2d 170, 428 N.E.2d 437 (1980) (construing Rules of Appellate Procedure). The Supreme Court of Ohio was therefore without jurisdiction to hear t......
  • Mid American Mach. Tools, Inc. v. Lindley, No. 81-316
    • United States
    • United States State Supreme Court of Ohio
    • December 2, 1981
    ...because appellant failed to specify the errors complained of in its notice of appeal as required by R.C. 5717.02. Appeal dismissed. [428 N.E.2d 437] FRANK D. CELEBREZZE, C. J., and SWEENEY, LOCHER and KRUPANSKY, JJ., WILLIAM B. BROWN, HOLMES and CLIFFORD F. BROWN, JJ., dissent. HOLMES, Just......
  • Request a trial to view additional results
34 cases
  • State v. Michael B. Buhrman, 97-LW-3447
    • United States
    • United States Court of Appeals (Ohio)
    • September 12, 1997
    ...214, 224, 624 N.E.2d 210. Post-conviction proceedings, however, are civil rather than criminal in character, State v. Harvey (1980), 68 Ohio App.2d 170, 22 O.O.3d 235, 428 N.E.2d 437, and the plain error rule has been found to not be favored in civil cases. Goldfuss v. Davidson (1997), 79 O......
  • Ewing v. McMackin, No. 85-3252
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • September 3, 1986
    ...of his post-conviction motions. Id. at 125. 15 Because the post-conviction proceeding was civil, rather than criminal, State v. Harvey, 68 Ohio App.2d 170, 428 N.E.2d 437 (1980), Ewing, of course, had no Sixth Amendment right to counsel nor that such counsel be constitutionally effective, S......
  • Strickland v. Marshall, No. C-1-83-321.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • April 11, 1986
    ...which provides some discretion in a felony case in which the required notice was not timely filed, does not apply. Cf. State v. Harvey, 68 Ohio App.2d 170, 428 N.E.2d 437 (1980) (construing Rules of Appellate Procedure). The Supreme Court of Ohio was therefore without jurisdiction to hear t......
  • Mid American Mach. Tools, Inc. v. Lindley, No. 81-316
    • United States
    • United States State Supreme Court of Ohio
    • December 2, 1981
    ...because appellant failed to specify the errors complained of in its notice of appeal as required by R.C. 5717.02. Appeal dismissed. [428 N.E.2d 437] FRANK D. CELEBREZZE, C. J., and SWEENEY, LOCHER and KRUPANSKY, JJ., WILLIAM B. BROWN, HOLMES and CLIFFORD F. BROWN, JJ., dissent. HOLMES, Just......
  • Request a trial to view additional results

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