The opinion
Cupp, J.,
concurring in judgment only.
{¶ 15} I concur in the judgment of the court. I agree that the Civ.R. 60(B) motion filed by Schlee ought to have been filed as a petition for postconviction relief because Crim.R. 35 prescribes the attendant procedures.
{¶ 16} However, I do not believe that trial courts — and specifically the trial court in this case — should “recast” motions that are clearly labeled. The motion filed by Schlee was not an “irregular ‘no-name’ ” motion requiring the court to categorize it. State v. Bush, 96 Ohio St.3d 235 , 2002-Ohio-3993 , 773 N.E.2d 522, ¶ 10 . Rather, it was specifically delineated as a Civ.R. 60(B) motion. In such situations, the proper course for a trial court, in my view, is to simply deny the motion as improper under the rules, with, if appropriate, an explanation for the denial. Such a practice would allow the filing party to refile the motion under the proper procedural rule and is more consistent with our disposition in Bush.
{¶ 17} Moreover, there may be some unintended, unwanted consequences resulting from a trial court’s recasting of a motion. As appellant asserts, the trial court’s actions may abridge due process protections or adversely affect federal habeas corpus proceedings. For these reasons, I would answer the certified question in the negative, but I would nonetheless affirm the judgment of the court of appeals.
Lundberg Stratton, J., concurs in the foregoing opinion.
David H. Bodiker, Ohio Public Defender, and Kenneth R. Spiert, Assistant State Public Defender, urging reversal for amicus curiae Ohio Public Defender.
Charles B. Clovis, urging reversal for amicus curiae Ohio Association of Criminal Defense Lawyers.
Ron O’Brien, Franklin Country Prosecuting Attorney, and Steven L. Taylor, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Franklin County Prosecutor Ron O’Brien.