Summary
In State ex rel. Jones v. Wilson, 48 Ohio St.2d 349, 358 N.E.2d 605 (1976) and State ex rel. Lipson v. Hunter, 2 Ohio St.2d 225, 208 N.E.2d 133 (1965), the Ohio Supreme Court held that a person who is not a party to an action and has not attempted to intervene as a party is without capacity to appeal.
Summary of this case from Clareshire Court Condo. Unit Owners' Ass'n v. MontillaOpinion
No. 76-434
Decided December 23, 1976.
Appeal — Parties — One not party to case and not intervening — Without capacity to appeal.
APPEAL from the Court of Appeals for Clermont County.
This is an action in mandamus filed by the Prosecuting Attorney of Clermont County in the Court of Appeals for Clermont County, seeking an order directing respondent, Judge of the Common Pleas Court of Champaign County, sitting by assignment in Clermont County, to sentence Phillip S. Gardner in accordance with the provisions of R.C. 2951.02(F)(3).
The indictment of Gardner reads: "* * * did knowingly carry or have concealed on his person or concealed ready at hand, a deadly weapon, to-wit: one loaded 25 cal. automatic pistol and one five inch double edge dagger."
After a trial by jury, Gardner was found guilty of carrying concealed weapons.
The following special question was submitted to the jury:
"If your verdict is Guilty, Answer the following Question: Was the firearm loaded at the time of the offense?" The answer of the jury was "Yes."
At a sentencing hearing, respondent indicated to relator that he intended to consider Gardner for probation. Even though relator requested respondent to comply with R.C. 2951.02(F)(3), respondent sentenced Gardner to from one to ten years in the penitentiary and placed him on probation.
The Court of Appeals issued a writ of mandamus directing respondent to forthwith resentence Gardner in accordance with R.C. 2951.02(F)(3). The respondent imposed sentence pursuant to the order of the Court of Appeals.
The cause is before this court as "an appeal of right" by Gardner, the defendant in the criminal action, from the judgment of the Court of Appeals.
Gardner is represented on appeal by the public defender of Clermont County by reason of an affidavit of indigency.
Mr. Robert A. Jones, prosecuting attorney, in propria persona. Mr. William Walker, for appellant.
Appellant, Gardner, not being a party to the cause in the Court of Appeals and not having attempted to intervene as a party in that court, is without capacity to appeal.
The appeal is, therefore, dismissed sua sponte. State, ex rel. Lipson, v. Hunter, Bldg. Commr. (1965), 2 Ohio St.2d 225, 208 N.E.2d 133.
Appeal dismissed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.