COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
 
                       COUNTY OF CUYAHOGA
 
                           No. 84899
 
STATE OF OHIO                :
                             :       JOURNAL ENTRY
    Plaintiff-Appellee       :
                             :           AND
    vs.                      :
                             :         OPINION
PEDRO RUIZ                   :
                             :
    Defendant-Appellant      :
                             :
                             :
DATE OF ANNOUNCEMENT
OF DECISION                  :    FEBRUARY 24, 2005
                             :
CHARACTER OF PROCEEDINGS     :    Criminal appeal from
                             :    Common Pleas Court
                             :    Case No. CR-429154
                             :
JUDGMENT                     :    DISMISSED
 
DATE OF JOURNALIZATION       :
 
APPEARANCES:
 
For plaintiff-appellee:      WILLIAM D. MASON, ESQ.
                             Cuyahoga County Prosecutor
                             BY: MATTHEW E. MEYER, ESQ.
                                  T. ALLAN REGAS, ESQ.
                                  Assistant Prosecuting Attorneys
                             The Justice Center, 9th Floor
                             1200 Ontario Street
                             Cleveland, Ohio 44113
 
For defendant-appellant:     MARIA SANTO, ESQ.
                             306 North Main Street
                             Lima, Ohio 45801
 
                             PEDRO RUIZ, pro se
                             Inmate No. 442-458
                             R.C.I.
                             P.O. Box 8107
                             Mansfield, Ohio 44901
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                -2-
 
FRANK D. CELEBREZZE, JR., J.:
 
    Pedro Ruiz appeals the decision of the trial court in its
 
ruling  of  June  2,  2004, which denied his post-conviction
 
application for DNA testing. For the reasons that follow, we
 
dismiss this appeal for lack of a final appealable order.
 
    Appellant pleaded guilty to one count of rape and one count of
 
sexual imposition on February 4, 2003. He received an agreed
 
sentence of ten years and was classified as a sexual predator.
 
Appellant did not appeal his conviction and sentence.
 
    On April 13, 2004, appellant filed an application for DNA
 
testing, which the trial court denied on June 2, 2004. Appellant
 
filed a notice of appeal with respect to that ruling on July 1,
 
2004.
 
    Appellant also filed a Motion to Withdraw Guilty Plea on June
 
23, 2004. That motion was denied without hearing on November 16,
 
2004.1 However, on October 14, 2004, appellant filed his merit
 
brief in the instant matter, pro se, which addressed only the
 
denial of his Motion to Withdraw Guilty Plea, but does not address
 
the denial of the application for DNA testing.2
 
 
 
    1  Appellant filed a notice of appeal of that decision in
appellate Case No. 85649, which remains pending.
 
    2 Appellant's two assignments of error:
    "I. The trial Court erred to the prejudice of Appellant when
the trial Court denied Appellant's Motion to Withdraw his Guilty
Plea, pursuant to Criminal Rule 32.1 to correct a Manifest
Miscarriage of Justice, and further denied Appellant an Oral
Hearing as required by the provision of Criminal Rule 32.1."
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                -3-
 
     R.C. 2953.82(D) states: "If the prosecuting attorney disagrees
 
that the inmate should be permitted to obtain DNA testing under
 
this section, the prosecuting attorney's disagreement is final and
 
is not appealable by any person to any court, and no court shall
 
have authority, without agreement of the prosecuting attorney, to
 
order DNA testing regarding that inmate and the offense or offenses
 
for which the inmate requested DNA testing in the application. "
 
The prosecutor filed his Statement of Disagreement in the case at
 
bar with the trial court on May 25, 2004. Pursuant to the
 
controlling statute, the trial court correctly denied the
 
appellant's application for DNA testing, citing R.C. 2953.82(D).
 
     Therefore, the denial of appellant's application for DNA
 
testing is not a final appealable order, and this court lacks
 
jurisdiction to review the trial court 's determination on that
 
issue. Further, we decline to address appellant's arguments with
 
respect to the denial of his Motion to Withdraw Guilty Plea since
 
the instant appeal was taken not from the November 16, 2004 order,
 
but from the earlier denial of the DNA application on June 2, 2004,
 
as discussed above.
 
     Case dismissed.
 
 
 
 
     "II. The trial Court Abuses its discretion by denying
Appellant an evidentiary hearing on his Motion to Withdraw Guilty
plea pursuant to Criminal Rule 32.1 to correct a Manifest
Miscarriage of Justice."
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                               -4-
 
     It is ordered that appellee recover of appellant costs herein
 
taxed.
 
     A certified copy of this entry shall constitute the mandate
 
pursuant to Rule 27 of the Rules of Appellate Procedure.
 
 
 
 
                                   FRANK D. CELEBREZZE, JR.
                                       PRESIDING JUDGE
SEAN C. GALLAGHER, J.,      AND
 
MARY EILEEN KILBANE, J., CONCUR.
 
 
 
 
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. 22. 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
clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section
2(A)(1).
 
.