Opinion
No. 76-142
Decided April 13, 1977.
Appeal — Validity — Not affected by appellant's failure to take other steps.
APPEAL from the Court of Appeals for Lorain County.
The defendant, Lawrence T. Jones, was convicted of four felonies, after jury trial in the Court of Common Pleas of Lorain County. Sentence was imposed on September 17, 1974, with execution stayed pending a psychiatric examination of the defendant. After examination of this report, the trial court, on October 18, 1974, directed execution of sentence and the defendant was conveyed to the Ohio Penitentiary.
On October 10, 1974, the defendant, pro se, had filed a Notice of Appeal to the Court of Appeals from the conviction of September 17, 1974, together with a motion for the appointment of counsel, and an unnotarized "Affidavit of Indigency." On November 4, 1974, the defendant, pro se, again filed a Notice of Appeal" * * * of the judgment entered on the 17 day of Oct. * * *." This notice was accompanied by a notarized "Affidavit of Indigency and Motion for Records and Appointment of Counsel on Appeal."
The trial court, on October 18, 1974, did appoint counsel to conduct the appeal for the defendant.
The record does not reveal the nature of appointed counsel's participation in the appeal, subsequent to his appointment.
On November 17, 1975, the defendant, still acting on his own behalf, filed a Motion for Delayed Appeal. This motion was overruled by the Court of Appeals because "appellant has failed to comply with the requirements set forth in App. R. 5(A)."
The cause is now before this court pursuant to the allowance of defendant's motion for leave to appeal.
Mr. Joseph R. Grunda, prosecuting attorney, and Mr. John D. Pincura III, for appellee.
Mr. Robert J. Corts, for appellant.
The Motion for Delayed Appeal filed by the defendant, pro se, in the Court of Appeals was unnecessary as the defendant was properly before that court on his original notice of appeal. "Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal * * *." App. R. 3(A). The filing of the record and briefs necessary to prosecute the appeal herein was not completed. But, this laxity could well be ascribed to causes over which the defendant had no control and for which he should not be penalized.
It is clear that the defendant must be given an opportunity to have the merits of his cause reviewed by an appellate court.
The judgment of the Court of Appeals is reversed, and the cause is remanded to that court for a hearing on the merits.
Judgment reversed.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.