Opinion
No. 72-192
Decided December 15, 1972.
Criminal procedure — Court of Appeals — Appeal — Presentence referral for psychiatric examination — Motion to appeal dismissed after expiration of appeal time — Subsequent motion for reconsideration or delayed appeal — Should be sustained, when.
APPEAL from the Court of Appeals for Cuyahoga County.
Charles Morgan and Gary L. Davis, appellants herein, were indicted by the grand jury for violation of R.C. 2905.01 (rape). Following pleas of not guilty and the overruling of motions for separate trials, a joint jury trial was had. On May 1, 1970, defendants were found guilty of rape.
Prior to sentencing, defendants were referred by the court on May 12, 1970, for psychiatric examination, evaluation and report as required by R.C. 2947.25.
On May 14, 1970, the attorney for defendants filed a notice for leave to appeal to the Court of Appeals, and soon thereafter submitted to the appellate court a record of the trial, assignment of error and briefs on the merits. No objection was made by the prosecutor to the untimeliness of the appeal.
On December 16, 1971, the Court of Appeals rendered its decision on the propriety of appellants' May 14, 1970, motion for leave to appeal. Dismissing, sua sponte, the motion to appeal as being premature, the court stated that there was no notice of appeal filed with the clerk of the trial court on behalf of either defendant within time following the respective judgment and sentence order.
On December 23, 1971, appellants' attorney filed a motion for reconsideration or, alternatively, for leave to file a delayed appeal. On January 12, 1972, the Court of Appeals overruled such motion, sua sponte, without further opinion.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Harvey R. Monck, for appellee.
Messrs. Squire, Sanders Dempsey and Mr. Isaac Schultz, for appellants.
Upon the facts presented, the motion for a delayed appeal, filed December 23, 1971, should have been sustained. Therefore, the judgment is reversed and the cause is remanded.
Judgment reversed.
O'NEILL, C.J., SCHNEIDER, HERBERT, CORRIGAN, STERN, LEACH and BROWN, JJ., concur.