State v. Webb, 40451
| Decision Date | 28 June 1967 |
| Docket Number | No. 40451,40451 |
| Citation | 227 N.E.2d 625,11 Ohio St.2d 60 |
| Parties | , 40 O.O.2d 66 The STATE of Ohio, Appellee, v. WEBB, Appellant. |
| Court | Ohio Supreme Court |
Lee C. Falke, Pros. Atty., for appellee.
Gerald A. Messerman, Columbus, for appellant.
Although Douglas v. People of State of California (1963), 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, was decided after the judgment in the instant case became final, an indigent's right to court-appointed counsel at state expense on an appeal as of right is retrospective. Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (May 8, 1967); and Smith v. Crouse, Warden (1964), 378 U.S. 584, 84 S.Ct. 1929, 12 L.Ed.2d 1039 (192 Kan. 171, 386 P.2d 295).
In State v. Catlino (1967), 10 Ohio St.2d 183, 226 N.E.2d 109, the incarcerated convict, acting diligently but without counsel, did not file his notice of appeal as of right with the Court of Appeals within the statutory time. In the opinion by Taft, C. J., it is stated, at page 184, 226 N.E.2d at page 111 that:
'If the prisoner had not been denied his right to counsel, he would have had a reasonable opportunity to file his notice of appeal within the time limited by statute * * *.'
Paragraph two of the syllabus of Catlino states:
'In the absence of a judicial determination that a prisoner knowingly and intelligently waived his right to counsel on an appeal to the Court of Appeals from his judgment of conviction, the judgment of the Court of Appeals either dismissing the appeal or affirming the judgment of conviction will not amount to an adjudication of any claims of error that were or could have been raised on that appeal.' Cf. State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 109.
We then reversed Catlino's judgment of conviction and remanded the cause, so that the Court of Appeals could grant Catlino's motion for leave to appeal.
In the instant case, the appellant too was diligent, for he delivered his notice of appeal to the proper prison authorities four days before the time for appeal elapsed. Because of the 'Received' stamp on the notice document, it was evident to the Court of Appeals that the notice had been delivered to the proper prison authorities before the appeal time had elapsed.
In such an instance, the indigent, but diligent, appellant is not required to show probable error to overcome the presumption of regularity of the proceedings under which he was sentenced. Otherwise, such an appellant, because...
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State v. Sims, 70-78
...right has been given retroactive application. Smith v. Crouse (1964), 378 U.S. 584, 84 S.Ct. 1929, 12 L.Ed.2d 1039; State v. Webb (1967), 11 Ohio St.2d 60, 227 N.E.2d 625. This right exists even in the absence of a request. As articulated in Swenson v. Bosler (1967), 386 U.S. 258, at 260, 8......
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Mitchell v. Gray, 73-1538.
...480 F.2d 504 (6th Cir., decided June 15, 1973); Williams v. United States, 88 U.S.App.D.C. 212, 188 F.2d 41 (1951); State v. Webb, 11 Ohio St.2d 60, 227 N.E.2d 625 (1967). The State has prescribed the appellate procedure for its Courts and ought to have the right to determine whether such p......
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Mitchell v. Salisbury, 20891.
...letter to the officer in charge of the prison library for mailing, was sufficient to constitute a notice of appeal. State v. Webb, 11 Ohio St.2d 60, 227 N.E.2d 625 (1967). This Court is satisfied that the District Judge's findings are not clearly erroneous. Rule 52, Fed.R.Civ.P., 28 The fin......