Opinion
No. 40252
Decided May 24, 1967.
Criminal procedure — Appeal filed within rule — Failure to file bill of exceptions and brief within rule — Burden on appellant to establish grounds for such failure — Lack of funds — Dismissal of appeal not abuse of discretion, when.
APPEAL from the Court of Appeals for Allen County.
This cause is before this court pursuant to the allowance of a motion for leave to appeal.
Appellant was found guilty of first degree manslaughter on December 14, 1957. At his trial, he was represented by retained counsel. A motion for new trial was filed, but was overruled on December 18, 1957.
Still represented by counsel, appellant filed on January 10, 1958, within rule, a notice of appeal, but a bill of exceptions was not filed in the trial court within the 30-day limitation provided in Section 2945.65, Revised Code. Appellant now contends that he did not file a timely bill of exceptions because he lacked the necessary funds. On March 28, 1958, the prosecuting attorney filed a motion to dismiss for failure to file briefs and a bill of exceptions.
On April 21, 1958, appellant dismissed his counsel. Thereafter, the Court of Appeals extended the date for the hearing on the motion to dismiss in order to give appellant time to procure counsel. On July 22, 1958, appellant notified the Court of Appeals that he had retained counsel, and on September 17, 1958, the motion to dismiss was heard. On December 16, 1958, the Court of Appeals sustained the motion. No appeal was taken from this decision.
On June 4, 1959, the Court of Appeals overruled a motion for leave to appeal. Appeals were taken therefrom, which appeals this court dismissed on October 14, 1959, and certiorari was denied by the United States Supreme Court on June 20, 1960.
Appellant again filed a motion for leave to appeal in the Court of Appeals, which was overruled on March 23, 1966. An appeal was taken therefrom and this court allowed the motion for leave to appeal on September 28, 1966.
Mr. Robert L. Balyeat, prosecuting attorney, and Mr. John M. Leahy, for appellee.
Mr. Ralph K. Forsythe, in propria persona.
The issue presented is whether the Court of Appeals abused its discretion in overruling appellant's motion for leave to appeal. The burden is upon an appellant to establish sound grounds for the granting of such a motion.
Where the record and evidence before a Court of Appeals on a motion for leave to appeal establish that an appellant filed a timely notice of appeal and diligently sought to pursue such appeal, but because of circumstances beyond his control he was unable to comply with a procedural requirement and as a result thereof his appeal was dismissed, a Court of Appeals would abuse its discretion in denying a motion for leave to appeal.
In the instant case, there was nothing in the record before the Court of Appeals other than the statements of appellant in his briefs that his failure to file a bill of exceptions was due to a lack of funds. No evidence, either by testimony, affidavit, or otherwise, was presented to the Court of Appeals to support appellant's factual contention and carry his burden of proof. Consequently, we cannot hold that the Court of Appeals abused its discretion.
Further, although Section 2953.03, Revised Code, was not amended to permit indigents to obtain a free bill of exceptions until November 6, 1959, Griffin v. Illinois (1956), 351 U.S. 12, 100 L. Ed. 891, 76 S. Ct. 585, was decided before the appellant in the instant case filed on January 10, 1958, his notice of appeal as of right; and, in fact, this court's decision in State v. Frato, 168 Ohio St. 281, 154 N.E.2d 432 (November 19, 1958), although announced after the hearing on the motion to dismiss, was announced before the Court of Appeals' dismissal on December 16, 1958, of appellant's appeal. Appellant, although then represented by counsel, at no time requested the trial court or the Court of Appeals for a free bill of exceptions. Consequently, for this further reason, we cannot hold that the Court of Appeals abused its discretion in overruling appellant's motion for leave to appeal. See State v. Perry (1967), 10 Ohio St.2d 175, paragraph seven of the syllabus.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.