State v. Mapson

Krupansky, J.,

dissenting. I believe the majority’s conclusion that a denial of a postconviction relief petition may be appealed within 30 days of the findings of fact and conclusions of law filed pursuant to R.C. 2953.21(E) ignores the unambiguous mandate of App. R. 4(A). Therefore, I must respectfully dissent.

In State v. Milanovich (1975), 42 Ohio St. 2d 46, 49 [71 O.O.2d 26], this court stated, “an action for postconviction relief is a civil proceeding. ” (Emphasis added.) The procedure to be followed in perfecting appeals in civil cases is governed by App. R. 4(A) which provides in relevant part:

“In a civil case the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within thirty days of the date of the entry of the judgment or order appealed from. * * *

“The running of the time for filing a notice of appeal is suspended as to all parties by a timely motion filed in the trial court by any party pursuant to the Civil Rules hereafter enumerated in this sentence, and the full time for appeal fixed by this subdivision commences to run and is to be computed from the entry of the last of any of the following orders made upon a timely motion under such rules granting or denying a motion (1) for judgment under Rule 50 (B),4 (2) for a new trial under Rule 59. * * * ’’(Emphasis added.)

Clearly, the 30 days within which a notice of appeal must be filed pursuant to App. R. 4(A) is a jurisdictional requirement and is suspended only by the timely filing of a motion for new trial or a motion for judgment n.o.v. Kauder v. Kauder (1974), 38 Ohio St. 2d 265 [67 O.O.2d 333]. R.C. 2953.21(E) does re-

*221quire the court to file findings of fact and conclusions of law in postconviction proceedings, however, the court’s failure to do so does not suspend the 30 days for the filing of a notice of appeal. The proper remedy for a defendant in a case such as this is to either: (1) request an extension of time in which to file his notice of appeal pending the court’s filing of its findings of fact and conclusions of law; or (2) seek a writ of mandamus compelling the court to file the findings of fact and conclusions of law prior to the expiration of the time for filing the notice of appeal.

The majority’s holding disregards the unequivocal provisions of App. R. 4(A) and construes R.C. 2953.21(E) in a manner totally inconsistent with the appellate rule. As this court stated in State v. Hughes (1975), 41 Ohio St. 2d 208, at 210 [70 O.O.2d 395]:

“* * * App. R. 1 provides that the rules govern procedure in appeal to Courts of Appeals from the trial courts of record in Ohio. Clearly they supersede all procedural statutes in conflict with them.” (Emphasis sic.)

Consequently, the provisions of App. R. 4(A) supersede any countervailing procedural statutes. Therefore, I believe the majority’s attempt to construe R.C. 2953.21(E) in a manner which conflicts with App. R. 4(A) is erroneous. Furthermore, it is plain to me the majority has once again disregarded the clear, unambiguous language of the rules of appellate procedure and has disrupted the orderly progression of cases through the appellate process. In addition, their holding will create chaos in the legal community since attorneys become increasingly unsure of how this court will administer the appellate rules.

Accordingly, I would affirm the Court of Appeals.

A “judgment under Rule 50(B)” refers to a judgment n.o.v.