Opinion
No. 75-773
Decided April 21, 1976.
Criminal procedure — Appeal — Notice of appeal — Timely filed, when — By prison inmate — Delivery to proper prison authorities.
APPEAL from the Court of Appeals for Logan County.
On July 1, 1975, appellant, Nick Westfall, was sentenced to the Ohio State Penitentiary by the Court of Common Pleas of Logan County for aggravated assault. Appellant was transported to the reception center located at the Chillicothe Correctional Institute.
On July 18, 1975, appellant, following institution procedure, filed an appeal through the institute's legal officer. Due to a clerical error within the institution records the notice of appeal was erroneously mailed to Lucas County. The notice of appeal was subsequently returned, and a corrected notice of appeal was prepared and mailed, but was not received by the Clerk of Courts of Logan County until August 5, 1975, some 35 days after filing of the entry of sentencing or five days past filing date. (See App. R. 4[B].)
The Court of Appeals dismissed the appeal because it was not timely filed and the court was without jurisdiction to proceed.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. Douglas MacGillivray, prosecuting attorney, for appellee.
Messrs. Bowers, White DeMeo and Mr. David E. Bowers, for appellant.
This court finds the case of State v. Williamson (1967), 10 Ohio St.2d 195, controlling.
In Williamson, at page 196, this court held:
"In our opinion, a defendant incarcerated in prison and acting without the aid of counsel filed his notice of appeal in time, if, within the * * * period specified * * * he delivers such notice to the proper prison authorities for forwarding to the court. In such a case, the jailer in effect represents the lower court * * *. We believe that such a conclusion is required by Fallen v. United States (1964), 378 U.S. 139."
In the case at bar, appellant filed his original notice of appeal with the Legal Officer of the Chillicothe Correctional Institute on July 18, 1975, well within the time for perfecting his appeal. Through no fault of appellant, the notice of appeal was erroneously mailed to Lucas County. Therefore, appellant, who properly followed institution procedure, has filed his notice of appeal "in time" by delivering such notice "to the proper prison authorities for forwarding to the court." Williamson, supra.
The judgment of the Court of Appeals is reversed and the cause is remanded to the Court of Appeals for a hearing on the merits.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.