State ex rel. Lee v. Hall, (Ohio 2008)
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Writ of Procedendo
Summary
Writ of Procedendo
Text
[Cite as State ex rel. Lee v. Hall, 2008-Ohio-5334.]
COURT OF APPEALS MORROW COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX REL., :
JUDGES: BRIAN A. LEE :
:
Hon. W. Scott Gwin, P.J.
Petitioner :
Hon. John W. Wise, J. -vs-
: Hon. Julie A. Edwards, J.
: HOWARD E. HALL, JUDGE :
: CASE NO. 08-CA-6 Respondent :
:
OPINION
CHARACTER OF PROCEEDING: Petition for Writ of Procedendo
JUDGMENT: WRIT DISMISSED
DATE OF JUDGMENT ENTRY: October 2, 2008
APPEARANCES:
For Petitioner pro se: For Respondent:
BRIAN A. LEE - #427-325 BRENT W. YAGER Pickaway Correctional Inst.
Morrow County Assistant Prosecutor P.O. Box 209 60 East High Street Orient, OH 43146-0209 Mt. Gilead, OH
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Morrow County, Case No. 08-CA-6
2
Edwards, J.,
On May 13, 2008, Petitioner Brian Lee filed a Complaint for Writ of Procedendo requesting the trial court be ordered to rule on Petitioner's "Motion for Reduction of Prison term for Related Days of Confinement." The motion was filed with the trial court on October 26, 2007. Respondent has filed a motion to dismiss suggesting the relief requested has been rendered by the trial court; therefore, the Complaint is moot. Petitioner has not filed a response to the motion to dismiss. The trial court issued a ruling on Petitioner's underlying motion on June 3, 2008.
To be entitled to the issuance of a writ of mandamus, the Petitioner must demonstrate: (1) a clear legal right to the relief prayed for; (2) a clear legal duty on the respondent's part to perform the act; and, (3) that there exists no plain and adequate remedy in the ordinary course of law. State ex rel. Master v. Cleveland (1996), 75 Ohio St.3d 23, 26-27, 661 N.E.2d 180; State ex rel. Harris v. Rhodes (1978), 5 Ohio St.2d 41, 324 N.E.2d 641, citing State ex rel. National City Bank v. Bd. of Education (1977), 520 Ohio St.2d 81, 369 N.E.2d 1200.
The Supreme Court held in Madsen, "Mandamus will not issue to compel an act that has already been performed." State ex rel. Scruggs v. Sadler, 102 Ohio St.3d 160, 2004-Ohio-2054, 807 N.E.2d 357, ¶ 5. State ex rel. Madsen v. Jones (2005), 106 Ohio St.3d 178, *179, 833 N.E.2d 291, **292.
Because the relief sought has already been rendered by the trial court, Petitioner has no clear right to the relief prayed for, and the Respondent has no clear legal duty to perform an act which it has already performed. State ex rel. Lewis v.
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Morrow County, Case No. 08-CA-6
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Boggins, 2007 WL 4395630 (Ohio App. 5 Dist.). Therefore, we find the Petition for Writ of Procedendo must be dismissed.
WRIT DISMISSED.
COSTS TO PETITIONER.
By: Edwards, J.
Gwin, P.J. and Wise, J. concur
____________________
HON. JULIE A. EDWARDS
____________________
HON.
W.
SCOTT GWIN
____________________
HON.
JOHN W.
WISE
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[Cite as State ex rel. Lee v. Hall, 2008-Ohio-5334.]
COURT OF APPEALS MORROW COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX REL., :
BRIAN A. LEE :
:
Petitioner : CASE NO. 08-CA-6 -vs-
:
: HOWARD E. HALL :
:
Respondent :
:
JUDGMENT ENTRY
For the reasons stated in the Memorandum-Opinion on file, Petitioner's Writ of Procedendo is hereby dismissed. Costs taxed to Petitioner.
____________________
HON. JULIE A. EDWARDS
____________________
HON.
W.
SCOTT GWIN
____________________
HON.
JOHN W.
WISE
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