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The State Ex Rel. v. Court of Appeals For the Sixth Appellate District.

October 27, 2011

THE STATE EX REL.
BATES, PROS. ATTY.,
v.
COURT OF APPEALS FOR THE SIXTH APPELLATE DISTRICT.



Per curiam.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Bates v. Court of Appeals for the Sixth Appellate Dist., Slip Opinion No. 2011- Ohio-5456.]

NOTICE

This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

SLIP OPINION NO. 2011-OHIO-5456

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Bates v. Court of Appeals for the Sixth Appellate Dist., Slip Opinion No. 2011-Ohio-5456.]

Prohibition--Writ sought to prevent a court of appeals from proceeding with a delayed appeal from an order denying a pretrial constitutional challenge--Court of appeals patently and unambiguously lacked jurisdiction to act--Order was not final and appealable--Writ granted.

Submitted September 6, 2011

IN PROHIBITION.

{¶1} This is an action for a writ of prohibition to prevent a court of appeals from proceeding with a delayed appeal from an order denying a pretrial constitutional challenge in a death-penalty case. Because the court of appeals patently and unambiguously lacks jurisdiction to proceed in the appeal when the order does not constitute a final, appealable order, we grant the writ.

Facts

{¶2} Anthony Belton is charged with one count of aggravated murder with death-penalty specifications and two counts of aggravated robbery with firearm specifications in State v. Belton, Lucas Cty. C.P. No. CR 200802934. In February 2009, Belton filed a motion challenging the constitutionality of R.C. 2929.03 and Crim.R. 11(C)(3). Belton claimed that these provisions are unconstitutional because they preclude him from entering a plea of guilty without waiving his right to a jury trial during the sentencing phase of his capital case. On November 30, 2009, the common pleas court denied Belton's motion and upheld the constitutionality of R.C. 2929.03 and Crim.R. 11(C)(3).

{¶3} Nearly a year later, on October 25, 2010, Belton filed a "notice of intent to admit in accordance with Crim.R. 11(C)(3) and impanel a jury for determination of appropriate sentence." Belton later moved for reconsideration of the court's denial of his motion challenging the constitutionality of R.C. 2929.03 and Crim.R. 11(C)(3), and the court denied the motion.

{¶4} On March 8, 2011, respondent, the Sixth District Court of Appeals, dismissed Belton's appeal from the common pleas court's denial of his motion for reconsideration because "[t]here is no such thing as a motion for reconsideration of a final judgment in a criminal case" and "appellant appealed a void judgment entry denying his motion for reconsideration." State v. Belton, Lucas App. No. L- 10-1347, 2011-Ohio-1141, ¶ 23, 25. In the context of that opinion, however, the court of appeals concluded that our decision in State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, "clearly contemplates that a constitutional challenge to Crim.R. 11(C)(3) and the corresponding statute must proceed via interlocutory appeal of a final order" and that Belton's October 25, 2010 "notice of intent to plea[d] transformed the November 30, 2009 judgment [upholding the constitutionality of Crim.R. 11(C)(3)] into a final order." Belton at ¶ 18, 25.

{¶5} On April 20, 2011, Belton filed a motion in the court of appeals for leave to file a delayed appeal from the common pleas court's November 30, 2009 order upholding the constitutionality of Crim.R. 11(C)(3) and R.C. 2929.03. To support his motion, Belton relied on the language from the court of appeals' opinion dismissing his appeal from the denial of his motion for reconsideration. The state opposed Belton's motion, but on June 8, 2011, the court of appeals granted the motion.

{ΒΆ6} On June 24, 2011, relator, Lucas County Prosecuting Attorney Julia R. Bates, instituted this action for a writ of prohibition to prevent the court of appeals from proceeding in Belton's delayed appeal and to compel the dismissal of the appeal. On July 19, the court of appeals filed an answer in which ...


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