Opinion
No. 35365
Decided May 7, 1958.
Criminal law — Appeal — Copy of notice need not be filed in appellate court, when — Leave to appeal not necessary, when — Appeal filed within 30 days after sentence and judgment — Sections 2953.04 and 2953.05, Revised Code.
APPEAL from the Court of Appeals for Franklin County.
The defendant was charged with operating a motor vehicle while intoxicated in violation of a municipal ordinance, was tried in the Municipal Court and was found guilty and sentenced.
The Court of Common Pleas, on appeal, reversed the judgment of conviction, on the ground that the plaintiff "failed to prove the defendant was operating the motor vehicle at the time and place set forth in the affidavit."
Six days after the filing of the judgment entry of reversal, the plaintiff filed in the Court of Common Pleas its notice of intention to appeal from the judgment of reversal to the Court of Appeals. On the same day, plaintiff filed in the Court of Common Pleas its praecipe requesting the clerk of courts to file the transcript of docket entries, together with all original papers, in the Court of Appeals.
No notice of appeal or application for leave to appeal was filed in the Court of Appeals.
Defendant filed a motion to dismiss the appeal for the reason that leave was not first obtained to file such appeal as provided in Section 2953.04, Revised Code, and no notice of appeal was filed in the Court of Appeals.
The Court of Appeals found that it was not necessary to obtain leave to file such appeal or to file a notice of such appeal in the Court of Appeals and dismissed the motion to dismiss. The court then considered the case on its merits, reversed the judgment of the Court of Common Pleas and affirmed the judgment of the Municipal Court.
The allowance of a motion to certify the record brings the cause to this court for review.
Mr. Russell Leach, city attorney, Mr. Bernard T. Chupka, Mr. Frank A. Reda and Mr. Sidney Golden, for appellee.
Messrs. Rowe, Dunkle Davis, for appellant.
The question presented is whether a plaintiff, in appealing from a judgment adverse to it in a criminal proceeding, is required by the provisions of Section 2953.04, Revised Code, to file a copy of the notice of appeal in the appellate court and first obtain leave from that court to file an appeal.
Section 2953.04, Revised Code, relative to procedure in the appeal of criminal cases, provides in part:
"Judgments and final orders are reviewed by appeal, instituted by filing notice of appeal with the court rendering such judgment or order and with filing a copy thereof in the appellate court where leave to appeal must be obtained."
Section 2953.05, Revised Code, provides:
"Appeal under Section 2953.04 of the Revised Code, may be filed as a matter of right within 30 days after sentence and judgment. After 30 days from sentence and judgment, such appeal may be filed only by leave of the court or two of the judges thereof."
The provision of the first section above quoted makes necessary the filing of a copy of the notice of appeal in the appellate court only in a case where leave to appeal must be obtained.
Under the provision of the second section above quoted, leave to appeal to the Court of Appeals must be obtained only where the appeal is not filed until more than 30 days after sentence and judgment. The unambiguous language of the section applies equally to each party. In the instant case, the necessity for obtaining leave to appeal from the appellate court clearly does not exist, since the notice of appeal was filed in the Court of Common Pleas only six days after the filing of the judgment entry.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.