COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71655 & 71656 CITY OF LYNDHURST : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : JOHN P. MASSERIA : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 23, 1997 CHARACTER OF PROCEEDING: Criminal appeal from the Lyndhurst Municipal Court Case No. 95-TRC-11936 and Case No. 95-CRB-00562 JUDGMENT: DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: IRL D. RUBIN, ESQ. STEWART D. ROLL, ESQ. PROSECUTING ATTORNEY JEFFREY A. SHAPIRO, ESQ. CITY OF LYNDHURST PERSKY, SHAPIRO, SALIM, 35401 Euclid Avenue, Suite 101 ESPER, ARNOFF & NOLFI CO. LPA Willoughby, Ohio 44094 1410 Terminal Tower Cleveland, Ohio 44113-2298 DYKE, J.: Appellant, John P. Masseria, is appealing the Lyndhurst Municipal Court's order denying his petition to vacate and set 2 aside judgment, motion for an order that defendant was unavoidably prevented from filing a motion for a new trial, and motion for a new trial. Appellant was convicted after a bench trial of driving under the influence of alcohol (Case No. 95TRC11936, Cuyahoga App. No. 71655), assault, domestic violence, resisting arrest, drug abuse and drug paraphernalia (Case No. 95CRB00562, Cuyahoga App. No. 71656). For the following reasons, we grant appellee's motion to dismiss this appeal. On 4-18-96, appellant was sentenced to fines, 180 days jail and a driver's license suspension of one year. The judge said, . . . I'm not going to order any kind of probation or anything, but your lawyer knows what to do. Don't bother me for at least 60 days to file a motion. If you do file a motion, you should have all your fines paid. Appellant paid the fines. A motion for mitigation of sentence was filed on 4-25-96. The motion was granted. Defendant was ordered to participate in electronically monitored home arrest, to end 10-12-96. On 10-10-96, appellant filed a petition to vacate the judgment, motion for a new trial, and a motion for an order that defendant was unavoidably prevented from filing a motion for new trial. The trial court denied these motions because of mootness. Post conviction relief is not available for the violation of municipal ordinance, unless the municipal code makes such remedy available. Dayton v. Hill (1970), 21 Ohio St.2d 125. There is no Lyndhurst ordinance providing for post conviction relief. Appellant's petition for post conviction relief was properly denied. In any case, the post conviction relief and the direct 3 appeal of the denial of a motion for a new trial and denial of the motion for order that appellant was unavoidably prevented from filing a motion for a new trial are moot. Appellee filed a motion to dismiss this appeal as moot. All of the offenses in question are misdemeanors. When a defendant convicted of a misdemeanor voluntarily pays the fine and serves the sentence imposed, an appeal is moot, unless there is some evidence from which an inference can be drawn that the defendant will suffer a collateral disability or loss of civil rights. State v. Wilson (1975), 41 Ohio St.2d 236, State v. Berndt (1987), 29 Ohio St.3d 3. The defendant must have a substantial stake in the judgment of conviction that survives the satisfaction of the judgment, or the appeal is moot. Id. Appellant asserts that he has a collateral disability because the victim filed a civil suit against him. When a person injured by a criminal act files suit against the criminal defendant: No record of a criminal conviction, unless obtained by confession in open court, shall be used as evidence ... R.C. 2307.60. Appellant asserts that his insurance company could properly refuse to defend appellant in the civil suit, because the criminal conviction establishes he acted intentionally. See Preferred Risk Ins. Co. v. Gill (1987), 30 Ohio St.3d 108. Appellant presented no evidence that he had an insurance policy, and no evidence as to the terms of the policy. The policy language may require coverage despite the conviction, or may not provide coverage for reasons other than the conviction. Whether appellant's insurance company will refuse to defend him due to the 4 conviction is purely speculative. Additionally, Gill, supra is distinguishable because the defendant in that case pled guilty. Appellant has not shown any evidence from which a collateral disability could be inferred. Appellant also contends he served the conviction involuntarily, so the appeal is not moot. See Berndt, supra, State v. Harris (1996), 109 Ohio App.3d 873. The judge did not prohibit appellant from filing a motion to stay, but said not to file a motion to reduce sentence for sixty days. In fact, appellant filed the motion to reduce sentence seven days later. Appellant could have filed a motion to stay the sentence, but chose not to do so. Appellant voluntarily served the sentence. Appellant also contends that a motion to stay was not practical. According to appellant, if the motion were granted, the pretrial suspension of driving privileges would be reinstated and appellant would be further delayed from being able to drive. Appellant would not have been further delayed from driving, because appellant's administrative license suspension would terminate after one year. R.C. 4511.191(E)(1). The judge stated that appellant would receive credit for the pretrial suspension. Even if the pretrial suspension was re-imposed, appellant would be without a license for the same length of time as if he served his sentence. Filing a motion to stay was not impracticable. Cf. Middletown v. Allen(1989), 63 Ohio App.3d 443. This appeal is moot pursuant to Wilson, Berndt, supra. Appellant contends that even if the appeal is moot pursuant 5 to Wilson, supra, this court must still address the issue of whether the trial court lacked jurisdiction. If jurisdiction is not properly invoked, the court has no authority to enter the judgment, and the judgment is void. State ex rel. Easterday v. Zieba (1991), 58 Ohio St.3d 251, Troutman v. Mitchem (1984), 14 Ohio App.3d 463. A judgment that is void for lack of jurisdiction can be attacked any time. Id. It is questionable whether this court can address the jurisdiction argument when the case is moot. If the conviction is vacated for lack of jurisdiction, appellant could be tried and convicted again, when he has already served his sentence. Assuming this court could reach the jurisdiction issue, we find the trial court had jurisdiction, for the following reasons. Appellant asserts the trial court lacked jurisdiction because he did not waive his right to trial by jury. See State v. Cheadle (1986), 30 Ohio App.3d 253, State v. Edwards (1995), 107 Ohio App.3d 783. Appellant filed a jury demand five days before trial. This demand stated that counsel believed a jury demand had been filed long ago, but the court file did not include a jury demand. On the date scheduled for trial, 2-14-96, appellant's attorney stated that on 1-10-96, he filled out a handwritten request for a jury and filed it. The trial court denied the jury demand filed on 2-9-96 as untimely. The court denied appellant's motion for a continuance, although the trial judge could only hear the case for two hours, and would have to continue the case to 4-12-96. Appellee argues that this issue is res judicata. According to 6 appellee, appellant failed to directly appeal the issue, so appellant is barred from raising the issue in post conviction proceedings. See State v. Szefcyk (1996), 77 Ohio St.3d 93. However, appellant directly appealed the denial of his motion for a new trial, in which he argued a new trial should be granted because appellant's right to a jury was violated. Lack of jurisdiction is an issue for direct appeal, because the matter can be fairly determined without resort to evidence dehors the record. See State v. Cole (1982), 2 Ohio St.3d 112, State v. Lentz (1994), 70 Ohio St.3d 527. Crim. R. 23(A) sets out the procedure for demanding a jury trial. In petty offense cases, where there is a right of jury trial, the defendant shall be tried by court unless he demands a jury trial. Such demand must be in writing and filed with the clerk of court not less than ten days prior to the date set for trial. . . Failure to demand a jury trial as provided in this subdivision is a complete waiver of the right thereto. Crim. R. 23(A). For a petty offense, failure to request a jury constitutes waiver of the right. Dayton v. Drake (1990), 69 Ohio App.3d 180, See Tallmadge v. De-Graft-Biney (1989), 39 Ohio St.3d 300. The offenses here were petty offenses. See Crim. R. 2. There is no timely jury demand in the court file or on the docket. A motion that is not on the docket is considered not filed and unknown to the trial court. Cochran v. Grace Hospital (Mar. 22, 1990), Cuyahoga App. No. 56737, unreported. A court speaks only through its docket. State ex rel. Industrial Comm. v. Day (1940), 136 Ohio St. 477, State ex rel. Industrial Comm. v. 7 Musselli (1923), 102 Ohio St. 10. Defense counsel's statement on the record that he timely filed a jury demand is not sufficient to establish the demand was filed. Crim. R. 23 imposes upon the defendant the duty to properly file the demand, or the defendant's right to a jury is waived. Appellant did not properly demand a jury, so his right to jury trial was waived. The trial court had subject matter jurisdiction over the case. This is appeal is moot as to any other issues. Accordingly, the appellee's motion to dismiss this appeal is granted. 8 It is ordered that appellee recover of appellant its costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. BLACKMON, P.J., CONCURS. ROCCO, J., CONCURS IN JUDGMENT ONLY ANN DYKE JUDGE 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 .