Court of Appeals of Ohio, Eleventh District, Lake
Appeal from the Court of Common Pleas, Case No. 2014 CR
Charles Coulson, Lake County Prosecutor, Lake County
Administration Building, For Plaintiff-Appellee.
D. Massey, pro se, PID# A660-766, Lake Erie Correctional
CYNTHIA WESTCOTT RICE, J.
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.
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
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).
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.
R.C. 2505.02(B) states, in part, that:
"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:
"(1) An order that affects a substantial right in an
action that in effect determines the action and prevents a
"(2) An order that affects a substantial right made in a
special proceeding or upon a summary application in an action
"(3) An order that vacates or sets aside a judgment or
grants a new trial;
"(4) An order that grants or denies a provisional remedy
and to which ...