I respectfully dissent from the majority opinion. Unlike the majority, I believed the trial court had jurisdiction to rule on appellant's motions. Although arguably a mere matter of semantics, I would find no error had the trial court overruled appellant's motion because the case was no longer pending. Such ruling would constitute an exercise of jurisdiction. The majority presumes appellant's two motions were preliminary to the filing of a petition for post conviction relief pursuant to R.C. 2953.21 and bases its decision upon cases analyzing that statute. The majority first asserts, "Ohio law is clear that discovery is not available in the initial stages of a post conviction proceeding," citing State v. Byrd (Aug. 21, 2001), Hamilton App. No. C-010379, unreported, as authority. Although I concede I have not done exhaustive research of this issue, my research did reveal a reported appellate case which held unless clearly inapplicable, the Civil Rules apply to a proceeding under R.C. 2953.21. The majority notes this Court held in State v. Sherman the extent of the trial court's jurisdiction [to grant requests for discovery] is set forth by R.C. 2953.21, and the power to conduct and compel discovery under the Civil Rules is not included within the trial court's statutorily defined authority. I did not participate in that decision, and I disagree with the conclusion R.C. 2953.21 sets forth the extent of the trial court's jurisdiction [to grant requests for discovery]. The statute neither specifically identifies the trial court's authority regarding discovery, nor specifically precludes discovery in proceedings under the statute. It is agreed proceedings under R.C. 2953.21 are civil proceedings. Civ.R. 1(C) provides the Civil Rules apply in the exercise of civil jurisdiction except, " . . . to the extent that they would by their nature be clearly inapplicable . . ." in special statutory proceedings. The statute itself specifically recognizes the availability of a motion for summary judgment (Civ.R. 56) as a procedural mechanism to resolve the petition. I find conducting discovery under Title V of the Rules of Civil Procedure is not by its nature clearly inapplicable to proceedings under R.C. 2953.21. Accordingly, I must respectfully dissent from the majority's blanket conclusion the trial court lacks jurisdiction to grant discovery motions filed postconviction.

JUDGE WILLIAM B. HOFFMAN

OPINION

It is from this judgment entry appellant prosecutes this appeal, assigning the following error:

THE TRIAL COURT ERRED AS A MATTER OF LAW BY RULING THAT IT LACKED JURISDICTION TO CONSIDER THE MOTIONS FILED BY APPELLANT.

This case comes to us on the accelerated calender. App.R. 11.1, which governs accelerated calender cases, provides, in pertinent part: (E) Determination and judgment on appeal. The appeal will be determined as provided by App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the statement of the reason for the court's decision as to each error to be in brief and conclusionary form. The decision may be by judgment entry in which case it will not be published in any form.

This appeal shall be considered in accordance with the aforementioned rule. I Appellant, in his sole assignment of error, contends that the trial court erred in denying appellant's motions on the basis that, since there was no open case pending, it lacked jurisdiction to consider the same. Since the trial court's determination was a legal decision, we shall review the same under the de novo standard. As is stated above, appellant filed two motions with the trial court on May 2, 2001. While one motion requested fingerprint comparison at state expense, the other sought an order from the trial court preserving evidence. In essence, appellant's two motions sought discovery, presumably, for the purpose of filing a petition for postconviction relief pursuant to R. C. 2953.21. Ohio law is clear that discovery is not available in the initial stages of a postconviction proceeding. See State v. Byrd (Aug. 21, 2001), Hamilton App. No. C-010379, unreported. As noted by this Court in State v. Sherman (Oct. 30, 2000), Licking App. No. 00CA39, unreported: A petition for post-conviction relief is a civil proceeding. State v. Milanovich (1975), 42 Ohio St.2d 46. However, the procedure to be followed in ruling on such a petition is established by R.C. 2953.21. . . . Further, the extent of the trial court's jurisdiction [to grant requests for discovery] is set forth by R.C. 2953.21, and the power to conduct and compel discovery under the Civil Rules is not included within the trial court's statutorily defined authority. State v. Lundgren (December 18, 1998), Lake Appellate No. 97-L-110, unreported.

Since, based on the foregoing, the trial court lacks jurisdiction to grant discovery motions that are filed postconviction, appellant's sole assignment of error is overruled. Accordingly, the Judgment of the Ashland County Court of Common Pleas is affirmed.

By: Edwards, P.J. Gwin, J. concur Hoffman, J. dissents