[Cite as State v. Tate, 2017-Ohio-9265.]


                                      IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                           LAKE COUNTY, OHIO


STATE OF OHIO,                                      :      MEMORANDUM OPINION

                 Plaintiff-Appellee,                :

        -vs-                                        :      CASE NO. 2017-L-139

DAVID L. TATE,                                      :

                 Defendant-Appellant.               :


Criminal Appeal from the Court of Common Pleas, Case No. 15 CR 000085.

Judgment: Appeal dismissed.


Charles Coulson, Lake County Prosecutor, Lake County Administration Building, 105
Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

David Tate, pro se, PID: A673-337, Mansfield Correctional Institution, 1150 North Main
Street, Mansfield, OH 44901 (Defendant-Appellant).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     On October 26, 2017, appellant, pro se, filed a notice of appeal from a

September 25, 2017 judgment entry of the Lake County Court of Common Pleas

denying his motion for clarification and motion for resentencing. Appellant’s notice of

appeal was due to be filed by October 25, 2017, which was not a holiday or a weekend.

Thus, his appeal was untimely filed by one day.

        {¶2}     App.R. 4(A)(1) states in relevant part:
       {¶3}   “* * * [a] party who wishes to appeal from an order that is final upon its

entry shall file the notice of appeal required by App.R. 3 within 30 days of that entry.”

       {¶4}   Appellant has a remedy to file an untimely appeal from a criminal

judgment under App.R. 5(A), which states:

       {¶5}   App.R. 5(A) states:

       {¶6}   “(1) After the expiration of the thirty day period provided by App.R. 4(A) for

the filing of a notice of appeal as of right, an appeal may be taken by a defendant with

leave of the court to which the appeal is taken in the following classes of cases:

       {¶7}   “(a) Criminal proceedings;

       {¶8}   “(b) Delinquency proceedings; and

       {¶9}   “(c) Serious youthful offender proceedings.

       {¶10} “(2) A motion for leave to appeal shall be filed with the court of appeals

and shall set forth the reasons for the failure of the appellant to perfect an appeal as of

right. Concurrently with the filing of the motion, the movant shall file with the clerk of the

trial court a notice of appeal in the form prescribed by App.R. 3 and shall file a copy of

the notice of the appeal in the court of appeals. The movant also shall furnish an

additional copy of the notice of appeal and a copy of the motion for leave to appeal to

the clerk of the court of appeals who shall serve the notice of appeal and the motions

upon the prosecuting attorney.”

       {¶11} In the present case, appellant has neither complied with the thirty-day rule

set forth in App.R. 4(A)(1) nor sought leave to appeal under App.R. 5(A). Thus, this

court is without jurisdiction to consider the appeal, and it is hereby sua sponte

dismissed as being untimely.




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      {¶12} Appeal dismissed.



THOMAS R. WRIGHT, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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