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State v. Massey

Court of Appeals of Ohio, Eleventh District, Lake

December 29, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
GARY D. MASSEY, Defendant-Appellant.

         Criminal Appeal from the Court of Common Pleas, Case No. 2014 CR 000344.

          Charles Coulson, Lake County Prosecutor, Lake County Administration Building, For Plaintiff-Appellee.

          Gary D. Massey, pro se, PID# A660-766, Lake Erie Correctional Institution, Defendant-Appellant.

          MEMORANDUM OPINION

          CYNTHIA WESTCOTT RICE, J.

         {¶1} On September 18, 2017, appellant, Gary D. Massey, filed a notice of appeal from an August 23, 2017 entry of the Lake County Court of Common Pleas. In that entry, the trial court ordered that appellant's petition to vacate or set aside judgment is stricken from the docket for appellant's failure to serve appellee, the state of Ohio, and the Lake County Prosecutor, with a copy of the petition.

         {¶2} Appellee filed a motion to strike appellant's brief, construed by this court as a motion to dismiss, on November 28, 2017, claiming that the appealed order is not a final appealable order and should be dismissed. The state contends that appellant's petition for postconviction relief was not ruled upon, but rather, it was stricken, and "there is no reviewable decision over which this court can exercise [jurisdiction.]" Also, pursuant to State v. Gibbs, 11th Dist. Geauga No. 2014-G-3234, 2015-Ohio-3216, ¶ 12, a procedural order does not dispose of a pending issue. Further, pursuant to State v. Holt, 9 Ohio St.2d 147(1967), an order that prevents a judgment for a party prejudiced by the order, where there is no right to amendment of the order, is a final appealable order.

         {¶3} According to Section 3(B)(2), Article IV of the Ohio Constitution, a judgment of a trial court can be immediately reviewed by an appellate court only if it constitutes a "final order in the action. Germ v. Fuerst, 11th Dist. Lake No. 2003-L-116, 2003-Ohio-6241, ¶ 3. If a lower court's order is not final, then an appellate court does not have jurisdiction to review the matter and the matter must be dismissed. Gen. Acc. Ins. Co. v. Ins. of N. Am., 44 Ohio St.3d 17, 20 (1989). For a judgment to be final and appealable, it must satisfy the requirements of R.C. 2505.02 and, if applicable, Civ.R. 54(B).

         {¶4} Pursuant to R.C. 2505.02(B), there are seven categories of "final orders, " and if a trial court's judgment satisfies any of them, it will be considered a "final order" which can be immediately appealed and reviewed by a court of appeals.

         {¶5} R.C. 2505.02(B) states, in part, that:

         {¶6} "An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:

         {¶7} "(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;

         {¶8} "(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;

         {¶9} "(3) An order that vacates or sets aside a judgment or grants a new trial;

         {¶10} "(4) An order that grants or denies a provisional remedy and to which ...


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