COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60461 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION MARTIN TIMPERIO : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 14, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-207,011 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor GEORGE LONJAK, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: ROBERT TROLL LYNCH Attorney at Law 711 Statler Office Tower Cleveland, Ohio 44115 - 2 - FRANCIS E. SWEENEY, P.J.: Defendant-appellant, Martin Timperio, appeals from the judgment of the court of common pleas which overruled his motion to vacate his conviction or, in the alternative, his motion for a new trial. For the reasons that follow, we affirm the decision of the common pleas court. On August 1, 1986, appellant was convicted on three counts of rape of a minor in violation of R.C. 2907.02. This court affirmed appellant's conviction, State v. Timperio (Sep. 17, 1987), Cuyahoga App. No. 52521, unreported, and the Ohio Supreme Court overruled appellant's motion for leave to appeal. Subsequently, the Ohio Supreme Court announced its landmark decision in State v. Boston (1989), 46 Ohio St. 3d 108. In Boston, the court held that an expert may not testify as to the expert's opinion of the veracity of the statements of a child declarant. Id., syllabus. Thereafter, on December 11, 1989, appellant filed his "motion to vacate or alternatively motion for new trial." The trial court overruled said motion, and this appeal follows. Appellant's sole assignment of error states: THE COURT BELOW ERRED BY FAILING TO VACATE THE FORMER JUDGMENT OR, ALTERNATIVELY, TO GRANT A NEW TRIAL. - 3 - Appellant argues he is entitled to have his conviction vacated or, in the alternative, that he is entitled to a new trial on the grounds that this court's decision affirming his conviction is in conflict with the Ohio Supreme Court's decision in Boston, supra. This argument lacks merit. In the present case, appellant moved to have his conviction vacated. However, the proper vehicle by which to vacate an allegedly void or voidable judgment is not through a motion, as presented to the trial court, but through post-conviction relief remedies pursuant to R.C. 2953.21 et seq. Moreover, a motion for a new trial is governed by Crim. R. 33. Crim. R. 33(B) provides: (B) Motion for New Trial; Form, Time. Application for a new trial shall be made by motion which, except for the case of newly discovered evidence, shall be filed within fourteen days after the verdict was rendered, or the decision of the court where a trial by jury has been waived, unless it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from fil- ing his motion for a new trial, in which case the motion shall be filed within seven days from the order of the court finding that the defendant was unavoidably prevented from fil- ing such motion within the time provided herein. Motions for new trial on account of newly discoverd evidence shall be filed within one hundred twenty days after the day upon which the verdict was rendered, or the decision of the court where trial by jury has been waived. If it is made to appear by clear and convinc-ing proof that the defendant was unavoidably prevented from the discovery of the evidence upon which he must rely, such motion shall be filed within seven days from - 4 - an order of the court finding that he was unavoidably pre-vented from discovering the evidence within the one hundred twenty day period. Thus, a motion for a new trial must be brought within fourteen days, unless based on newly-discovered evidence, in which case such motion must be brought within one hundred twenty days, after the day upon which the verdict was rendered. In the present case, the verdict was rendered on August 1, 1986. However, appellant's motion was not brought until December 11, 1989. Moreover, appel-lant failed to seek an order of the court finding that he was unavoidably prevented from filing his motion within the time allotted by the rule. Therefore, appellant's motion for a new trial was not timely, and the trial court did not err in overruling said motion. Accordingly, appellant's sole assignment of error is over- ruled. Judgment affirmed. - 5 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J. COX, J.* CONCUR JUDGE FRANCIS E. SWEENEY *Sitting by Assignment: Edward A. Cox, Judge of the Seventh Dis- trict Court of Appeals. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .