Opinion
No. 40804
Decided July 26, 1967.
Criminal procedure — Appeal — Rights of convicted indigent defendant — Appointment of counsel and bill of exceptions at state expense.
APPEAL from the Court of Appeals for Cuyahoga County.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Ralph D. Sperli, for appellee.
Mr. Wynder T. Williams, in propria persona.
This cause is before the court on a motion for leave to appeal.
In 1965, appellant, while represented by court-appointed counsel, was tried and found guilty of burglary and grand larceny.
In July 1966, the Court of Appeals granted a motion for leave to appeal. Appellant filed a motion for appointment of counsel and what he apparently thought were the necessary papers to procure a transcript of the record and a bill of exceptions in the Court of Common Pleas. He also filed an oath of indigency. The motion for appointment of counsel was overruled, the motion for a bill of exceptions was overruled, but the request for the transcript was granted.
The Court of Appeals affirmed the judgment, with the following entry:
"`Judgment affirmed' no complete bill of exceptions papers filed as such was a request for a transcript which was furnished as provided by Section 2953.03, R.C. Exc. O.S.J."
Where a motion for leave to appeal is granted by the Court of Appeals, the appellant is then in the same position as if he were pursuing an appeal as of right and is entitled to the same rights as the appellant in an appeal as of right. This includes the appointment of counsel and a bill of exceptions at state expense if he is an indigent. State v. Catlino, 10 Ohio St.2d 183.
Appellant, in the instant case, filed an oath as to his indigence and the trial court recognized his indigency when it granted a free transcript. He is, therefore, entitled to the appointment of counsel and a bill of exceptions at the expense of the state.
The motion for leave to appeal is granted, the judgment of the Court of Appeals is reversed and the cause is remanded to that court with instructions that counsel be appointed to represent appellant and a bill of exceptions be furnished for the appeal.
Judgment reversed.
MATTHIAS, O'NEILL, HERBERT and BROWN, JJ., concur.