Ohio App. R. 5 (2026)

(A) Motion by the defendant for a delayed appeal

(1) After the expiration of the 30-day period provided by App.R. 4(A) for the filing of a notice of appeal as of right, an appeal may be taken by a defendant with the permission of the court to which the appeal is taken in the following classes of cases:

(a) Criminal proceedings;

(b) Delinquency proceedings; and

(c) Serious-youthful-offender proceedings.

(2) Any motion for permission to appeal must be filed with the clerk of the court of appeals and must explain the reasons for the defendant’s failure to comply with the rules for filing an appeal as of right. The defendant seeking permission to appeal must also serve a copy of the motion on the appropriate municipal prosecutor, county prosecuting attorney, or law director. Concurrently with the filing of the motion, the defendant must file with the clerk of the trial court a notice of appeal in accordance with App.R. 3 and must file a copy of the notice of the appeal in the court of appeals.

The clerk of the court of appeals must send a copy of the motion and the notice of appeal to the appropriate prosecuting attorney.

(B) Motion by either party to reopen appellate proceedings

If a federal court grants a conditional writ of habeas corpus on a claim that a defendant’s constitutional rights were violated during state appellate proceedings that were terminated by a final judgment, the defendant or the state can file in the state court of appeals that entered the judgment a motion asking that court to reopen the appellate proceedings. Any such motion must be filed with the clerk of the court of appeals within 45 days after the conditional writ is granted. A certified copy of the conditional writ and any supporting opinion must be filed with the motion. The clerk must send a copy of a defendant’s motion to the prosecuting attorney.

(C) Motion by the prosecution for permission to appeal

When permission is sought by the prosecution from the court of appeals to appeal an order of the trial court, a motion for permission to appeal must be filed with the clerk of the court of appeals within 30 days from the entry of the order sought to be appealed (or, if that order is not a final order, within 30 days of the final order into which it merges) and must set forth the errors that the movant claims occurred in the proceedings of the trial court. The motion must be accompanied by affidavits, or by the parts of the record upon which the

movant relies, to show the probability that the errors claimed did in fact occur, and by a brief or memorandum of law in support of the movant's claims.

Concurrently with the filing of the motion, the movant must file with the clerk of the trial court a notice of appeal in accordance with App.R. 3 and must file a copy of the notice of appeal in the court of appeals and must comply with the service requirements in App.R.13.

Within 30 days from the filing of the motion, the defendant or alleged juvenile delinquent may file affidavits, parts of the record, and a brief or memorandum of law in response to the claims of the prosecution.

(D) Motion by the defendant challenging consecutive sentences

(1) Motion by the defendant for permission to appeal consecutive sentences under R.C. 2953.08(C)

Any motion from a defendant for permission to appeal consecutive sentences under R.C. 2953.08(C) must be filed with the clerk of the court of appeals within 30 days from the entry of the order sought to be appealed and must set forth the reason why the consecutive sentences exceed the maximum prison term allowed. The motion must be accompanied by a copy of the order stating the sentences imposed and stating the offense of which the defendant was found guilty or to which that person pled guilty. Concurrently with the filing of the motion, the defendant must file with the clerk of the trial court a notice of appeal in accordance with App.R. 3 and must file a copy of the notice of appeal in the court of appeals. The defendant must comply with the service requirements in App.R. 13.

The clerk of the court of appeals should send a copy of the motion and the notice of appeal to the prosecuting attorney.

(2) Permission to appeal consecutive sentences incorporated into appeal as of right

When a criminal defendant has filed a notice of appeal under App.R. 4, the defendant may elect to incorporate in the defendant’s initial appellate brief an assignment of error under to R.C. 2953.08(C), and this assignment of error will be treated as a timely motion for permission to appeal under R.C. 2953.08(C).

(E) Determination of the motion

Unless the court orders otherwise, a decision on any motion filed under this rule will be made by the court without oral argument.

(F) The clerk’s duties when a Motion for Permission to Appeal is filed

When any motion is filed with the clerk of the court of appeals under division (A), (C), or (D) of this rule, the clerk of the court of appeals must assign a case number to it and must

enter the case on the docket in accordance with App.R. 11(A). The clerk of the court of appeals must also send to the clerk of the trial court a notice about both the docketing of the motion and its assigned case number.

(G) Order and procedure following determination

A copy of the court’s decision on any motion for permission under this rule must be send by the clerk of the court of appeals to the clerk of the trial court.

If a defendant’s motion for permission to appeal is denied the clerk of the trial court must collect the costs pertaining to the motion, in both the court of appeals and the trial court, from the defendant.

If any motion for permission to appeal is granted, the clerk of the trial court must, in accordance with App.R. 10, transmit the record to the clerk of the court of appeals. All other procedures will be the same as for appeals of right in criminal cases, except as otherwise specifically provided in these rules.

Effective Date: July 1, 1971 Amended: July 1, 1988; July 1, 1992; July 1, 1994; July 1, 1996; July 1, 2003; July 1, 2019, July 1, 2026 Staff Note (July 1, 2003 Amendment)

Rule 5 Appeals by Leave of Court

The title of this rule was changed from Appeals by Leave of Court in Criminal Cases to Appeals by Leave of Court as a consequence of the amendment to division (A) described below.

Rule 5(A) Motion by defendant for delayed appeal

The amendment to division (A) effective July 1, 2003, was in response to the Supreme Court’s decision in In re Anderson (2001), 92 Ohio St. 3d 63, which held that adjudications of delinquency are not judgments to which App.R. 5(A) applies. The amendment made App.R. 5(A) apply to delinquency and serious youthful offender proceedings.

Rule 5(B) Motion to reopen appellate proceedings

The addition of a new division (B) was to address state appellate proceedings following a federal court’s granting of a conditional writ of habeas corpus that allows the prisoner to be freed if the state appellate court does not reopen appellate proceedings to address constitutional issues in the case. As a result of the addition of this new division (B), divisions (B) – (E) of the previous rule were relettered (C) – (F) respectively.

Staff Note (July 1, 2019 Amendment)

The amendment to App.R. 5(C) regarding the prosecution’s motion for leave to appeal an order that was not final when it was made, but subsequently merged into a final order, is intended to address only the required timing of such a motion. The amendment does not affect the threshold determination of whether an order is, in fact, a final order, which is determined with reference to the relevant Ohio statutes.

The additional amendments to App.R. 5(C) and 5(D)(1) remove references to a “judgment or order” and a “judgment and order,” instead referring solely to an “order.” These amendments bring the rules into conformity with the language of App.R. 4(A), which was similarly amended in 2014. As noted in the July 1, 2014 Staff Note to App.R. 4, these changes are not substantive.

Staff Note (July 1, 2026 Amendment)

The amendment adopts language now used in Rule 5 of the Federal Rules of Appellate Procedure by replacing the former term “leave of court” with the new phrase “permission of the court.”

The change to division (A)(2) clarifies that a criminal defendant seeking permission to file a delayed appeal is required to serve a copy of that request on the appropriate prosecutor.

New language in division (F) spells out what has presumably been the unwritten practice of appellate-court clerks when requests for permissive appeals have been filed under this rule.

Other stylistic updates intended to improve the readability of the rule and to bring greater clarity to some of its existing provisions have also been made.