Opinion
No. 220
Decided September 9, 1966.
Criminal procedure — Postconviction remedy — Section 2953.21 et seq., Revised Code — Notice of appeal — Time for filing — Section 2505.07, Revised Code.
Notice of appeal from a final judgment entered in a post-conviction proceeding under the provisions of Section 2953.21 et seq., Revised Code, must be filed within twenty days after the journal entry of the judgment has been filed with the clerk for journalization, as prescribed by Section 2505.07, Revised Code.
APPEAL: Court of Appeals for Auglaize County.
Mr. Dennis Meeks, in propria persona. Mr. James I. Shaw, prosecuting attorney, for appellee.
In a proceeding to vacate sentence initiated under the provisions of Section 2953.21, Revised Code, the Common Pleas Court entered final judgment adverse to the petitioner on April 2, 1966. Notice of appeal therefrom was filed 21 days thereafter, on April 23, 1966. The timeliness of the filing of the notice is now in issue.
The enactment, effective July 21, 1965, of Sections 2953.21 et seq., Revised Code, created a special proceeding for a postconviction determination of whether the constitutional rights of a prisoner in custody were denied or infringed prior to the conviction. The right of appeal from a final judgment in a postconviction proceeding is conferred by Section 2953.23, Revised Code, and specifically prescribed as being "pursuant to Chapter 2505 of the Revised Code." The time limits set forth in Section 2953.05, Revised Code, for filing notice of appeal are not applicable for that section is not a part of Chapter 2505 and the limits therein set forth have reference to other types of judgments or orders. Compare, State v. Thomas, 175 Ohio St. 563. Nor is there any provision for appeal by leave of court.
The time for filing a notice of appeal is, therefore, governed solely by Section 2505.07, Revised Code, prescribing that the appeal shall be perfected, by filing notice of appeal, within 20 days after the journal entry of the judgment appealed from has been filed with the clerk for journalization. This is a mandatory time limit, and a Court of Appeals has no jurisdiction to entertain an appeal where the notice of appeal has not been filed within this prescribed period. See Volz v. Volz, 167 Ohio St. 141, and authorities cited therein.
The appeal is dismissed, sua sponte, and the notice of appeal and other documents which appellant has filed are ordered stricken from the files.
Appeal dismissed.
YOUNGER, P. J., and MIDDLETON, J., concur.