Opinion
No. 90-394
Submitted April 17, 1990 —
Decided June 27, 1990.
Appellate procedure — Failure to file notice of appeal within time specified by Section 1, Rule I of the Supreme Court Rules of Practice leaves Supreme Court of Ohio without jurisdiction and appeal must be dismissed.
APPEAL from the Court of Appeals for Madison County, No. 89CA-10-020.
Appellee, George D. Alexander, is the Warden of the London Correctional Institution, where appellant, David B. Tyler, is incarcerated. Tyler claims that the Adult Parole Authority (which is not a party to this action) revoked his parole on unconstitutional grounds and, alternatively, that the authority abused its discretion by making Tyler wait three years before he next becomes eligible for parole.
Tyler filed a complaint in mandamus, containing these allegations, in the Court of Appeals for Madison County. The warden moved to dismiss the complaint, alleging, inter alia, that he was not a proper party to the action. Tyler then filed a motion to amend the complaint so as to substitute the Adult Parole Authority for the warden as respondent. The court of appeals denied Tyler's motion to amend and granted the warden's motion to dismiss on December 29, 1989.
Tyler, representing himself, filed a notice of appeal in the court of appeals. Tyler claims that he entrusted his notice of appeal to the prison mail room on January 27, 1990. However, the file stamp indicates that the notice was filed with the court of appeals on February 5, 1990. Tyler then filed his notice of appeal in this court on March 6, 1990.
The cause is now before us upon an appeal as of right.
David B. Tyler, pro se. Anthony J. Celebrezze, Jr., attorney general, and Allen P. Adler, for appellee.
Appellee argues that we have no jurisdiction over this appeal because the notice of appeal was not timely filed in the court of appeals. We agree.
Section 1(A), Rule I of the Supreme Court Rules of Practice plainly states: "The notice of appeal from a Court of Appeals must be filed in the court from which the case is appealed within thirty days from the entry of the judgment * * * appealed from * * *." Thirty days after December 29, 1989 was January 28, 1990. However, as that day was a Sunday, Tyler's notice of appeal was due on January 29. See Rule XI, Supreme Court Rules of Practice.
Tyler argues, citing Houston v. Lack (1988), 487 U.S. 266, that when a prisoner acting pro se, seeks to appeal an adverse judgment, we should consider his notice of appeal "filed" when he turns it over to the prison authorities for mailing.
In Houston, the United States Supreme Court rested its holding on its interpretation of a federal statute and the Federal Rules of Appellate Procedure, and not on any constitutional provision. As such, it is not binding on us.
Nor do we find Houston persuasive. In Houston, Justice Scalia observed in dissent that the court's interpretation of the phrase "filed with the clerk," Fed.R.App.P. 4(a)(1), to mean "`delivered to the warden of a prison'" was "remote from plain English." Houston, supra, at 280. Similarly, we reject appellant's suggestion that "filed in the court from which the case is appealed" really means "delivered to the prison mail room."
The notice of appeal is jurisdictional. State, ex rel. Curran, v. Brookes (1943), 142 Ohio St. 107, 26 O.O. 287, 50 N.E.2d 995, paragraph seven of the syllabus. Appellant failed to file it within the time specified in Section 1, Rule I. Thus, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.