Opinion
No. 75AP-412
Decided December 2, 1975.
Appeal — App. R. 5(A) — Filing of notice with trial court and Court of Appeals — Mandatory and jurisdictional.
App. R. 5(A), providing that a movant shall file a notice of appeal with the clerk of the trial court in the form prescribed by App. R. 3 and that a copy of such notice shall be filed in the Court of Appeals, is mandatory and jurisdictional.
APPEAL: Court of Appeals for Franklin County.
Mr. George C. Smith, prosecuting attorney, and Mr. Alan C. Travis, for appellee.
Mr. Lewis William Dye, for appellant.
This matter involves the filing of a motion for leave of court to file a delayed appeal in a criminal matter, the defendant-appellant having failed to file a notice of appeal as of right, under App. R. 4(B).
The prosecuting attorney has filed a memorandum contra, based upon the fact that defendant failed to file a notice of appeal with the clerk of the Court of Common Pleas, as required by App. R. 5(A). The specific portion of App. R. 5(A) applicable here is as follows:
"* * * Concurrently with the filing of the motion the movant shall file with the clerk of the trial court a notice of appeal in the form prescribed by Rule 3 and file a copy of the notice of appeal in the court of appeals. The movant shall also furnish a copy of his motion and a copy of the notice of appeal to the clerk of the court of appeals who thereupon shall serve the notice of appeal and a copy of the motion for leave to appeal upon the attorney for the prosecution, who may, within thirty days from the filing of the motion, file such affidavits, parts of the record and brief or memorandum of law to refute the claims of the movant."
We hold that the terms of App. R. 5(A), providing that the movant shall file a notice of appeal with the clerk of the trial court in the form prescribed by App. R. 3, and that a copy of such notice shall be filed in the Court of Appeals, is mandatory and jurisdictional.
In that the defendant has failed to file such notice of appeal within the trial court and in this court, the position of the prosecutor in this regard is well taken and the motion of the defendant for leave to appeal is hereby denied.
However, this defendant shall not be prejudiced in his right to file an additional motion for leave to appeal, pursuant to App. R. 5(A), along with the appropriate affidavit and/or parts of the record upon which the movant relies to show the probability that errors claimed in fact occurred, and for the concurrent filing of the aforestated notice of appeal prescribed by Civ. R. 3.
Motion granted.
STRAUSBAUGH, P. J., and REILLY, J., concur.