[Cite as State v. Owens, 123 Ohio St.3d 1204, 2009-Ohio-4086.]
THE STATE OF OHIO, APPELLANT, v. OWENS, APPELLEE.
[Cite as State v. Owens, 123 Ohio St.3d 1204, 2009-Ohio-4086.]
Motion to strike notice of appeal granted, and notice of appeal dismissed.
(No. 2009-0637 — Submitted July 14, 2009 — Decided August 20, 2009.)
APPEAL from the Court of Appeals for Mahoning County, No. 07 MA 229,
2009-Ohio-1508.
ON MOTION TO STRIKE NOTICE OF APPEAL AND TO DISMISS.
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{¶ 1} The Ohio Public Defender has filed a motion to strike the state's
notice of appeal and to dismiss the appeal in this case because of the state’s
failure to serve the notice of appeal on the Ohio Public Defender as required by
S.Ct.Prac.R. XIV(2)(A)(3), which provides as follows: “In a case involving a
felony, when a county prosecutor files a notice of appeal under S.Ct.Prac.R. II or
an order certifying a conflict under S.Ct.Prac.R. IV, the county prosecutor shall
also serve a copy of the notice or order on the Ohio Public Defender." The Ohio
Public Defender asserts that the failure of county prosecutors to comply with
S.Ct.Prac.R. XIV(2)(A)(3) is a significant and recurring problem that interferes
with its ability to fully discharge its responsibilities.
{¶ 2} In State v. Cargile, 121 Ohio St.3d 1208, 2009-Ohio-477, 901
N.E.2d 1289, State v. Lester, 121 Ohio St.3d 1209, 2009-Ohio-478, 901 N.E.2d
1290, and State v. Rohrbaugh, 121 Ohio St.3d 1210, 2009-Ohio-479, 901 N.E.2d
1291, we noted that county prosecuting attorneys have a clear duty to comply
with S.Ct.Prac.R. XIV(2)(A)(3), and we put county prosecuting attorneys and
their staffs on notice that failure to comply with the requirements of S.Ct.Prac.R.
XIV(2)(A)(3) may result in the dismissal of a notice of appeal.
SUPREME COURT OF OHIO
{¶ 3} In this case, there was an unquestioned failure of the Mahoning
County Prosecuting Attorney to comply with the requirements of S.Ct.Prac.R.
XIV(2)(A)(3). Compliance with those requirements is not optional.
{¶ 4} Accordingly, the motion to strike is granted. The notice of appeal
is stricken, and the cause is dismissed.
MOYER, C.J., and PFEIFER, O’CONNOR, O’DONNELL, LANZINGER, and
CUPP, JJ., concur.
LUNDBERG STRATTON, J., dissents and would hold the cause until the
Mahoning County Prosecuting Attorney complies with S.Ct.Prac.R.
XIV(2)(A)(3).
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Paul J. Gains, Mahoning County Prosecuting Attorney, and Gabriel M.
Wildman and Ralph Rivera, Assistant Prosecuting Attorneys, for appellant.
Timothy Young, Ohio Public Defender, and Stephen P. Hardwick,
Assistant Public Defender, for amicus curiae, Ohio Public Defender.
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