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State v. Cataraso6/24/2002
997), 117 Ohio App.3d 399, 404, citing Patton v. Diemer (1988), 35 Ohio St.3d 68, paragraph three of the syllabus. However, despite Cataraso's characterization of his challenge, he does not attack the subject matter jurisdiction of the trial court. Rather, Cataraso merely challenges the authority of the trial judge to act within its jurisdiction.
. "Subject matter jurisdiction focuses on the court as a forum and on the case as one of a class of cases, not on the particular facts of a case or the particular tribunal that hears the case." State v. Swiger (1998), 125 Ohio App.3d 456, 462. The relevant inquiry is which court constitutes the proper forum to hear the type of case in question, "i.e., municipal or common pleas, court of general jurisdiction or juvenile court." Swiger at 462, citing State v. Nelson (1977), 51 Ohio App.2d 31, Wilson, supra.
. At the trial court level, jurisdiction of criminal cases is vested in the court of common pleas. Swiger; R.C. 2931.03.
. "Where it is apparent from the allegations that the matter alleged is within the class of cases in which a particular court has been empowered to act, jurisdiction is present. Any subsequent error in the proceedings is only error in the "exercise of jurisdiction," as distinguished from the want of jurisdiction in the first instance.
. "* * * In cases where the court has undoubted jurisdiction of the subject matter, and of the parties, the action of the trial court, though involving an erroneous exercise of jurisdiction, which might be taken advantage of by direct appeal, or by direct attack, yet the judgment or decree is not void though it might be set aside for the irregular or erroneous exercise of jurisdiction if appealed from." Swiger at 462-463, quoting In the Matter of Waite (1991), 188 Mich. App. 189, 468 N.W.2d 912, 917 (emphasis in original).
. In this case, the trial court undeniably had jurisdiction to sentence Cataraso and had jurisdiction to determine whether restitution was an appropriate sentence. Even Cataraso concedes as much in his reply memorandum to this court. Cataraso's argument that the trial court exceeded its authority by ordering him to pay restitution under the facts of this particular case amounts to an argument that the court erred in the exercise of its jurisdiction, not that the court did not possess jurisdiction at all.
. Because Cataraso filed his motion subsequent to the time allowed for a direct appeal, claimed a denial of his constitutional right to be sentenced in accordance with the law, and has asked this court to void or vacate his sentence, we find that his motion constitutes a motion for post-conviction relief. See State v. Reynolds (1997), 79 Ohio St.3d 158, 160.
. Pursuant to R.C. 2953.21(A)(2), a petitioner must file a petition for post-conviction relief no later than one hundred eighty days after the expiration of the time for filing an appeal of the judgment of conviction. R.C. 2953.23(A) provides an exception to this requirement for a petitioner who shows that he "was unavoidably prevented from discovery of the facts upon which must rely to present the claim for relief," and that no reasonable factfinder would have found him guilty but for the constitutional error at trial. R.C. 2953.23(A).
. In this case, the trial court sentenced Cataraso on December 13, 1999. Cataraso filed his motion for post-conviction relief on August 9, 2001. Thus, more than one hundred eighty days elapsed before Cataraso filed his motion. Cataraso contends that the exception to the time limitation applies to him because he was unavoidably prevented from discovering facts upon which he relied in presenting his claim f
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