[Cite as State v. Porterfield, 2013-Ohio-4315.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                      TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                    :       MEMORANDIUM OPINION

                 Plaintiff-Appellee,              :
                                                          CASE NO. 2013-T-0032
        - vs -                                    :

ERIC LEE PORTERFIELD,                             :

                 Defendant-Appellant.             :


Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 00 CR
402.

Judgment: Appeal dismissed.


Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).

Eric Lee Porterfield, pro se, PID: A420502, Mansfield Correctional Institution, P.O. Box
788, Mansfield, OH 44901(Defendant-Appellant).



THOMAS R. WRIGHT, J.

        {¶1}      This appeal is from a ruling on a post-judgment motion in a criminal action

before the Trumbull County Court of Common Pleas. In “dismissing” the motion filed by

appellant, Eric Lee Porterfield, the trial court did not address the merits of his assertion

that no valid sentencing order has ever been rendered in the case. Instead, the court

predicated its ruling solely on the grounds that appellant failed to properly serve a copy

of the disputed motion on appellee, the State of Ohio.
       {¶2}   While the appeal has been pending, appellant was found to be a vexatious

litigator in a separate proceeding. When appellant failed to immediately move this court

for leave to proceed with the appeal under R.C. 2323.52(F)(2), the state filed a motion

to dismiss the matter. Before this court could issue a decision on the dismissal request,

appellant submitted the mandated motion for leave. After reviewing the record, though,

this court concludes that it is not necessary to rule upon the two motions because the

appealed judgment is not a final appealable order.

       {¶3}   Since the trial court’s decision to “dismiss” appellant’s motion was based

solely upon the lack of proper service, the dismissal was without prejudice because no

final ruling has been made on the substance of the motion. As a result, appellant has

not been denied the opportunity to obtain the exact relief sought in the motion. Fallang

v. Fallang, 12th Dist. Butler No. CA2002-12-316, 2003-Ohio-5105, ¶8. Specifically, he

still has the ability to re-file the motion and obtain a decision on its merits, so long as he

properly serves a copy of the motion upon the state. Id.

       {¶4}   Of the seven categories of possible final appealable orders listed in R.C.

2505.02(B), the appealed judgment in this case could only qualify as a final order under

division (B)(1). That division states that an order or ruling is immediately appealable if it

affects a substantial right, determines the pending action or matter, and prevents a final

decision in the losing party’s favor. As to the “substantial right” element, the appealed

judgment does not adversely affect any of appellant’s legal rights because he has not

been foreclosed from ultimately obtaining the relief sought in his motion. Id. Similarly,

since the disputed motion can be re-filed, the appealed judgment does not prevent him

from ultimately prevailing on the matter. Thus, the trial court’s dismissal of the motion

for lack of service is not a final appealable order that can be the subject of a separate

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appeal to this court.

       {¶5}    Pursuant to the foregoing, it is the sua sponte order of this court that this

appeal is hereby dismissed for lack of a final appealable order.



DIANE V. GRENDELL, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in judgment only.




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