Opinion
No. 40714
Decided May 10, 1967.
Criminal procedure — Postconviction remedy — Trial court denied relief — Notice of appeal — Placed in prison mail within rule — Filed in Court of Appeals out of rule — Appeal perfected, when — Jailer represents lower court.
APPEAL from the Court of Appeals for Hamilton County.
This is a motion to certify a judgment of the Court of Appeals in a postconviction remedy proceeding.
On September 14, 1962, appellant, Pearce Williamson, Jr., was indicted by the Grand Jury of Hamilton County for the crime of grand larceny and receiving stolen goods. Appellant pleaded guilty at his arraignment. He was at no time represented by counsel and contends that the court did not inform him of his right to counsel. Although appellant had previous misdemeanor convictions, he had no previous felony convictions.
In 1966, appellant field a petition under the Postconviction Remedy Act. On June 15, 1966, the Court of Common Pleas entered a judgment denying appellant relief under the Postconviction Remedy Act. Appellant's notice of appeal was placed in the prison mail on June 28, 1966, and passed by the censor on June 30, 1966. However, it was not filed in the Court of Appeals until on July 7, 1966, two days out of rule. The Court of Appeals dismissed the appeal on the ground that the notice of appeal was not filed within time.
Mr. Melvin G. Rueger, prosecuting attorney, and Mr. Fred J. Cartolano, for appellee.
Mr. Pearce Williamson, Jr., in propria persona.
Here, we have a situation where the notice of appeal was placed in the prison mail room seven days before the final date for filing. The notice was then out of the control of the appellant. Due to the delay occasioned by the administrative processes of the prison it did not reach the Court of Appeals until the filing date was past.
Section 2953.23, Revised Code, provides that an order denying postconviction relief "may be appealed pursuant to Chapter 2505 of the Revised Code." Section 2505.07, Revised Code, provides that "the period of time within which" an appeal to the Court of Appeals shall be perfected is "within 20 days." Section 2505.04, Revised Code, states that "an appeal is perfected when written notice of appeal is filed with the lower court," and that thereafter "no step required to be taken * * * is jurisdictional."
In our opinion, a defendant incarcerated in prison and acting without the aid of counsel files his notice of appeal in time, if, within the 20-day period specified in Section 2505.07, Revised Code, he delivers such notice to the proper prison authorities for forwarding to the court. In such a case, the jailer in effect represents the lower court within the meaning of Section 2505.04, Revised Code. We believe that such a conclusion is required by Fallen v. United States (1964), 378 U.S. 139.
The motion to certify is allowed, the judgment of the Court of Appeals is reversed and the cause is remanded to the Court of Appeals for a hearing upon the merits.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.