COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71540 STATE OF OHIO: : AND : Plaintiff-Appellee : OPINION : vs. : : STANLEY CODY : Defendant-Appellant JULY 24, 1997 Criminal appeal from Common DATE OF ANNOUNCEMENT Pleas Court Case No. CR-241888 OF DECISION: CHARACTER OF PROCEEDING: APPEAL DISMISSED. JUDGMENT: DATE OF JOURNALIZATION: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor APPEARANCES: ERIKA RITT Assistant Prosecuting Attorney For Plaintiff-Appellee: The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 KENNETH D. MYERS 701 Citizens Building 850 Euclid Avenue Cleveland, Ohio 44114 For Defendant-Appellant: : : : JOURNAL ENTRY 2 O'DONNELL, J.: On November 5, 1996, Stanley Cody filed a notice of appeal stating his intention to appeal from the orders of the trial court finding him be a probation violator, revoking his bond, denying his motion to modify sentence, and denying his motion for bond pending appeal. Cody attached to that notice copies of the September 6, 1996 judgment entry finding him to be a probation violator and the October 8, 1996 judgment entry denying his motion to modify sentence. A review of the docket in this case reveals that on September 19, 1989, after Cody plead guilty to drug trafficking, the court suspended imposition of sentence and placed him on three years probation. When he failed to report to the probation department in September 1990, the court issued a capias for his arrest. Following his arrest on that capias in August, 1996, the court, on September 6, 1996, adjudicated him to be a probation violator, revoked his probation, and ordered his original eighteen month sentence into execution. While incarcerated at the Lorain Correctional Institution as a probation violator, Cody filed a Motion to Modify Sentence or for Shock Probation, which the trial court denied on October 1, 1996, and again denied it on October 8, 1996. Cody then filed a Motion for an Appeal Bond which the trial court also denied. However, on November 5, 1996, Cody filed a Notice of Appeal from all of the orders of the trial court and also filed for a bond pending appeal, which our court granted on December 19, 1996, thus releasing him from incarceration. 3 Cody then filed an appellate brief on March 10, 1997, asserting seven assignments of error, all of which relate directly to the trial court's September 6, 1996 judgment entry finding him to be a probation violator. (See Appendix.) Because this appeal has not been filed timely, we lack jurisdiction to consider it and it must therefore be dismissed. App.R. 4(A), states, in relevant part: A party shall file the notice of appeal required by App.R. 3 within thirty days of the later of entry of the judgment or order appealed***. Here, pursuant to App.R. 4(A), although Cody had thirty days from September 6, 1996 to appeal from the judgment finding him to be a probation violator, he chose not to file his appeal until November 5, 1996. In effect, Cody is attempting to use this appeal to seek review of errors he claims occurred in connection with revocation of his probation. Since App.R. 4(A) specifies that a party shall file a notice of appeal within thirty days from the entry of final judgment, his appeal is improper, and we are without jurisdiction to consider it because the utilization of a subsequent order to indirectly or untimely appeal a prior order is a procedural anomaly not within the contemplation of the appellate rules. Since a court cannot reconsider a valid final judgment in a criminal case (See State, ex rel. Hansen v. Reed (1992), 63 Ohio St.3d 597), it also cannot reenter the same judgment to circumvent the App.R. 4(A) limitation period. The rejournalization of the court's October 1, 1996 entry on October 8, 1996 does not render Cody's November 5, 4 1996 appeal timely, nor authorize his appeal from the September 6, 1996 entry which revoked his probation. Cody's failure to timely file his notice of appeal deprives this court of jurisdiction to consider his appeal as a matter of right. Accordingly, this appeal is dismissed at appellant's cost. Appellant's bond is revoked and appellant is ordered to report to the trial court at 9:00 a.m. on July 30, 1997; he is remanded to the custody of the county sheriff for transportation back to Lorain Correctional Institution to continue serving his sentence. Appeal dismissed. Bond revoked and appellee to recover costs from appellant. Appendix The appellant's seven assignments of error state: I. THE TRIAL COURT HAD NO JURISDICTION TO HOLD APPELLANT IN VIOLATION OF HIS PROBATION MORE THAN FIVE YEARS AFTER HIS PROBATION PERIOD EXPIRED. II. THE TRIAL COURT ERRED, IN VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS, BY NOT HOLDING A PRELIMINARY 5 PROBATION VIOLATION HEARING. III. THE TRIAL COURT ERRED BY FINDING APPELLANT TO BE A PROBATION VIOLATOR SIX YEARS AFTER THE ALLEGED VIOLATIONS OCCURRED. IV. THE TRIAL COURT ERRED BY APPLYING THE WRONG BURDEN OF PROOF TO THE PROCEEDINGS. V. THE TRIAL COURT ERRED, IN VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHTS OF EQUAL PROTECTION, BY CONSIDERING HIS FAILURE TO PAY FINES IN A DETERMINATION OF WHETHER HE VIOLATED PROBATION, WITHOUT ADEQUATELY CONSIDERING HIS INABILITY TO PAY. VI. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING APPELLANT TO THE FULL JAIL TERM VII. THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF DRUG TESTING. 6 It is ordered that appellee(s) recover of appellant(s) costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, P.J., and MATIA, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .