Summary
finding the court of appeals to be without subject matter jurisdiction absent a final appealable order where order failed to comply with Crim.R. 32
Summary of this case from State v. WheelandOpinion
No. 76-494
Decided May 25, 1977.
Criminal law — Appeal — Ruling of trial court — Notice of appeal premature, when — App. R. 4(B), construed.
1. An announcement of a decision in a criminal case is not a final appealable order until the entry of judgment thereon is filed with the trial court. (App. R. 4[B].)
2. A notice of appeal from an announcement of a decision in a criminal case is premature until the entry of judgment thereon is filed with the trial court.
APPEAL from the Court of Appeals for Geauga County.
Appellant, Matthew Tripodo, was charged in Chardon Municipal Court with violation of R.C. 959.13, cruelty to animals, a misdemeanor of the second degree. After trial appellant was found guilty and sentenced to 90 days in jail, and a fine of $750 was imposed. The jail sentence and fine were suspended on condition that appellant make restitution to the Geauga County Humane Society for expenses incurred while appellant's horses were under its care.
Appellant filed a timely notice of appeal from the judgment of the trial court on August 15, 1975. At the same time, appellant filed a motion for a free transcript of proceedings with the trial court on the basis of indigency. On September 19, 1975, the trial court entered a decision as follows:
"RULING OF THE COURT"The Court grants defendant's August 15th motion in respect to all of the motions and the rulings of the Court on the motions, the sentencing of the Court in any and all matters heard and considered by the Court in ruling upon this case and finding [ sic] the defendant. As to a transcript of the evidence that was heard and considered by the Court and of the arguments of counsel, the Court feels that since defendant was represented by counsel throughout the entire trial, the usual procedure should be followed of having defense counsel and prosecutor submit to the Court for approval an agreed transcript of the testimony presented. If the Court then approves such statement, it can be forwarded to the Court of Appeals. All mechanically-recorded testimony in the possession of the Court is available to defendant upon request in order to supplement the agreed statement. The Court is certain that the attorney who represented defendant throughout the trial will recognize his duty to make his notes as to the evidence available to defendant for preparation of the agreed statement.
"The Court notices that defendant's counsel did not at any time make application to the Court to have a court reporter furnished without costs to defendant, a request with which the Court would have been glad to comply."
By letters dated September 19, 1975, the ruling was sent to both the prosecutor and defense counsel. The prosecutor was instructed to provide a journal entry reflecting the court's ruling.
A notice of appeal was also filed from the court's decision dated September 19, 1975. No journal entry was ever filed reflecting the ruling of the court on appellant's motion for a free transcript.
The Court of Appeals dismissed the appeal from the ruling of the trial court on appellant's motion for a free transcript, for the reason that there was no final appealable order since the decision of the court had never been journalized.
The cause is now before this court pursuant to the allowance of appellant's motion to certify the record.
Mr. Edward T. Brice, for appellee.
Mr. Paul Mancino, Jr., for appellant.
The issue before this court is whether a ruling of a trial court in a criminal case constitutes a final judgment from which an appeal can be taken when the ruling is intended to be an announcement of the decision and the decision is not later finalized by an appropriate judgment entry.
App. R. 4(B) provides as follows:
"In a criminal case the notice of appeal by a defendant shall be filed with the clerk of the trial court within thirty days of the date of the entry of the judgment or order appealed from. A notice of appeal filed after the announcement of a decision, sentence or order but before entry of the judgment or order shall be treated as filed after such entry and on the day thereof. * * *"
Clearly the Rules of Appellate Procedure contemplate that there may be an announcement of a decision or order which does not commence the running of the 30-day period for filing a notice of appeal and which is not final until entry of the judgment based on that decision. If the notice of appeal is filed prematurely, App. R. 4(B) makes it timely when the judgment entry is filed. The problem in this case is that the notice of appeal was filed after the announcement of the ruling of the court, but the ruling was never made final by a judgment entry properly journalized.
Appellant argues that the ruling itself constitutes the final judgment from which an appeal can be taken under R.C. 2505.02 and that a judgment entry is not required. That contention is not well taken. It is obvious in the instant case that the "ruling of the court" was not intended to be the judgment, but that judgment was to be entered thereafter. A document not labeled a judgment nor unequivocally intended to be a judgment does not constitute a judgment triggering the time within which to file a notice of appeal. Otherwise, had appellant waited more than 30 days after the announcement of the court's ruling, appeal time would have lapsed even though a judgment thereon had never been entered or was entered 30 days after announcement of the decision.
The important consideration is that the parties, particularly the defendant in a criminal case, be fully aware of the time from which appeal time commences running.
App. R. 4(B) was designed to clarify the time for appeal as well as to eliminate the situation where a party lost his right to appeal by filing the appeal prematurely. Appellant's reliance on State v. Boyd (1972), 30 Ohio St.2d 64, is not well founded. Crim. R. 32(B) now requires that a judgment in a criminal case be reduced to writing signed by the judge and entered by the clerk. An appeal prior to that time is now premature as is the notice of appeal therefrom. App. R. 4(B). Contrary to the situation that existed prior to the adoption of App. R. 4(B), the premature notice of appeal is not totally ineffective, but it becomes mature when and if judgment is entered.
App. R. 4(A) contains a similar provision for time for filing a notice of appeal in a civil case. As we recently held, an equivocal order in a civil case not readily identifiable as a judgment entry, but arguably intended by the trial judge as an announcement of his decision, is not a final appealable order. Millies v. Millies (1976), 47 Ohio St.2d 43.
The ruling on the motion for a free transcript was obviously not intended to be a final disposition of the matter and, further, insufficiently contained notice of its finality to indicate to appellant that an immediate appeal would be required. Hence, appellant's notice of appeal was premature and was never made mature by the entry of a final judgment.
It is unfortunate that the trial court or the parties did not place a judgment entry on the record in the trial court so that the premature notice of appeal could then be based on a final judgment vesting the Court of Appeals with subject matter jurisdiction. We regret the delay necessitated by dismissing the appeal for lack of subject matter jurisdiction. The trial court should have prepared an entry and filed it with the clerk for journalization within 30 days after the ruling, where counsel did not prepare and present the entry for journalization. See Rule 7, Rules of Superintendence for Municipal Courts and County Courts. In the future, Courts of Appeals should consider requesting the parties to journalize the ruling of the trial court so that they would obtain jurisdiction of the appeal, before dismissing the appeal.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, P. BROWN and SWEENEY, JJ., concur.
CELEBREZZE and LOCHER, JJ., dissent.
MCCORMAC, J., of the Tenth Appellate District, sitting for W. BROWN, J.