State v. Anderson

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[Cite as State v. Anderson, 2006-Ohio-5645.] THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO STATE OF OHIO, Plaintiff-Appellee, : MEMORANDUM OPINION : CASE NO. 2006-L-197 - vs - : RAYMOND S. ANDERSON, Defendant-Appellant. : : Civil Appeal from the Court of Common Pleas, Case No. 04 CR 000420. Judgment: Appeal dismissed. Charles E. Coulson, Lake County Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee). Raymond S. Anderson, pro se, PID: 474-081, Belmont Correctional Institution, P.O. Box 540, St. Clairsville, OH 43950-0540 (Defendant-Appellant). WILLIAM M. O NEILL, J., {¶1} This matter is before this Court upon appellant, Raymond S. Anderson s, pro se notice of appeal filed September 14, 2006, from the trial court s August 14, 2006 judgment denying his motion to correct judgment pursuant to Civ.R. 60(B). Appellant s notice of appeal was due by Wednesday, September 13, 2006, which was not a holiday or a weekend. {¶2} App.R. 4(A) states that: {¶3} A party shall file the notice of appeal required by App.R. 3 within thirty days of the later of entry of the judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if service is not made on the party within the three day rule period in Rule 58(B) of the Ohio Rules of Civil Procedure. {¶4} Loc.R. 3(D)(2)1 of the Eleventh District Court of Appeals provides: {¶5} In the filing of a Notice of Appeal in civil cases in which the trial court clerk has not complied with Ohio Civ.R. 58(B), and the Notice of Appeal is deemed to be filed out of rule, appellant shall attach an affidavit from the trial court clerk stating that service was not perfected pursuant to Ohio App.R. 4(A). The clerk shall then perfect service and furnish this Court with a copy of the appearance docket in which date of service has been noted. Lack of compliance shall result in the sua sponte dismissal of the appeal under Ohio App.R. 4(A). (Emphasis sic.) {¶6} Here, appellant has not complied with the thirty-day rule set forth in App.R. 4(A) nor has he alleged that there was a failure by the trial court clerk to comply with Civ. R. 58(B). The time requirement is jurisdictional in nature and may not be enlarged by an appellate court. State ex rel. Pendell v. Adams Cty. Bd. of Elections (1988), 40 Ohio St.3d 58, 60; App.R. 14(B). {¶7} Accordingly, this appeal is dismissed sua sponte pursuant to App. R. 4(A). DIANE V. GRENDELL, J., COLLEEN MARY O TOOLE, J., concur. 1. We note that the numbering of this rule changed and was effective August 1, 2005. 2

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