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BURNS V. OHIO, 360 U. S. 252 (1959)

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U.S. Supreme Court

Burns v. Ohio, 360 U.S. 252 (1959)

Burns v. Ohio

No. 581

Argued May 18, 1959

Decided June 15, 1959

360 U.S. 252


Ohio accords to each person whose conviction of a felony has been affirmed by its Court of Appeals the right to apply to its Supreme Court for leave to appeal, and that Court has jurisdiction to grant such leave and hear such appeals in its discretion. After petitioner's conviction of a felony had been affirmed by the Ohio Court of Appeals, he gave notice of appeal and attempted to file in the Ohio Supreme Court motions for leave to appeal and to proceed in forma pauperis, supported by an affidavit of poverty. These papers were returned to him by the Clerk of the Ohio Supreme Court with a letter advising him, in effect, that the Court had determined on numerous occasions that such papers could not be filed without payment of a docket fee. In this Court, counsel for the State conceded that the Clerk's letter is "in reality and in effect" the judgment of the Supreme Court of Ohio.


1. Since the Ohio Supreme Court had sanctioned its Clerk's well publicized and uniform practice of returning pauper's applications with form letters such as that used in this case, this amounted to a delegation to the Clerk of a matter involving no discretion, and it sufficed to make the Clerk's letter a "final judgment" of Ohio's highest court within the meaning of 28 U.S.C. § 1257. Pp. 360 U. S. 256-257.

2. Since a person who is not indigent may have the Ohio Supreme Court consider his application for leave to appeal from a felony conviction, denial of the same right to this indigent petitioner solely because he was unable to pay the filing fee violated the Fourteenth Amendment. Griffin v. Illinois, 351 U. S. 12. Pp. 360 U. S. 257-258.

(a) That petitioner had already received one appellate review of his conviction in Ohio does not require a different result, since others similarly situated who could pay the filing fee could have the State's Supreme Court consider their applications for leave to appeal. P. 360 U. S. 257. chanroblesvirtualawlibrary

Page 360 U. S. 253

(b) That the granting of leave to appeal is discretionary with the Ohio Supreme Court in such a case as this does not require a different result, since that Court did not permit petitioner to invoke its discretion. Pp. 360 U. S. 257-258.

Judgment vacated and cause remanded.

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