State v. Marcoff

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[Cite as State v. Marcoff, 2010-Ohio-69.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 92698 STATE OF OHIO PLAINTIFF-APPELLEE vs. PETER MARCOFF, III DEFENDANT-APPELLANT JUDGMENT: DISMISSED Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-511283 BEFORE: RELEASED: Dyke, J., Rocco, P.J., and Kilbane, J. January 14, 2010 JOURNALIZED: ATTORNEY FOR APPELLANT Michael P. Maloney, Esq. 24441 Detroit Road, Suite 300 Westlake, Ohio 44145 ATTORNEYS FOR APPELLEE William D. Mason, Esq. Cuyahoga County Prosecutor By: John Smerillo, Esq. Assistant County Prosecutor 1200 Ontario Street Cleveland, Ohio 44113 N.B. This entry is an announcement of the court s decision. See App.R. 22(B) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(C) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court s decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court s announcement of decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac. R. 2.2(A)(1). ANN DYKE, J.: {¶ 1} Defendant-appellant, Peter Marcoff, III ( appellant ), appeals his conviction for aggravated riot. For the reasons that follow, we dismiss the appeal for lack of a final, appealable order. {¶ 2} On November 17, 2008, following a trial, a jury found appellant guilty of one count of aggravated riot in violation of R.C. 2917.02(A)(1) and/or (A)(2) and/or (A)(3). Soon thereafter, on November 26, 2008, appellant filed a motion for judgment of acquittal or in the alternative for a new trial. He argued that the verdict was not sustained by sufficient evidence and that an error of law occurred when a jury instruction contained an incorrect statement of law that prejudiced him. The trial court never ruled upon said motion, and instead, sentenced appellant to one year of community control sanctions and three years of postrelease control. {¶ 3} Appellant now appeals and presents five assignments of error for our review. Because the trial court failed to rule upon his motion for judgment of acquittal or his motion for a new trial pursuant to Crim.R. 33, we decline to address the merits of appellant s appeal and dismiss the matter for lack of a final, appealable order. {¶ 4} The Ohio Constitution limits an appellate court s jurisdiction to reviewing only final orders or judgments. Constitution; R.C. 2505.02. Section 3(B)(2), Article IV, Ohio Accordingly, this court must sua sponte dismiss appeals which are not from final appealable orders. State v. Martin, Wayne App. No. 06CA0069, 2007-Ohio-5764, at ¶6. {¶ 5} App.R. 4(B)(3) provides that [i]n a criminal case, if a party timely files a motion for arrest of judgment or a new trial for a reason other than newly discovered evidence, the time for filing a notice of appeal begins to run when the order denying the motion is entered. However, if a notice of appeal is filed while the motions are still pending, in that the trial court has yet to deny them, the notice of appeal is considered premature and does not impose jurisdiction upon an Ohio appellate court. Dayton v. Huber, Montgomery App. No. 19838, 2003-Ohio-6667, at ¶5, citing State v. Soward (1975), 47 Ohio App.2d 59, 60, 352 N.E.2d 155. See, also, State v. Turner, Cuyahoga App. No. 88489, 2007-Ohio-3264, at ¶17-18; Cleveland v. Kline, Cuyahoga App. No. 86665, 2006-Ohio-2087, at ¶2. {¶ 6} In this matter, the trial court has not ruled upon appellant s motion for acquittal or motion for a new trial in which he argues, not that there is newly discovered evidence, but that there was insufficient evidence to sustain his conviction and the jury was given improper instructions. Accordingly, we dismiss this appeal for lack of jurisdiction. Appeal dismissed. It is ordered that appellee recover from appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, JUDGE KENNETH A. ROCCO, P.J., and MARY EILEEN KILBANE, J., CONCUR

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