Casdorph v. Kohl

629 N.E.2d 34, 90 Ohio App. 3d 294, 1993 Ohio App. LEXIS 4406

Opinion

Per Curiam.

This matter is before the court as an original action upon the petition of Kenneth Casdorph for a writ of habeas corpus. Petitioner is currently incarcerated in the Wood County Jail pursuant to a court order.

This court finds that the Bowling Green Municipal Court continued petitioner’s previous probation in April 1993, on the condition that he leave the state of Ohio and not return for five years. On August 11, 1993, petitioner was arrested in Ohio and incarcerated for a violation of his probation condition.

A writ of habeas corpus is an extraordinary writ that may not be issued by the court when an adequate remedy at law exists. Adams v. Humphreys (1986), 27 Ohio St.3d 43, 27 OBR 456, 500 N.E.2d 1373, and Pettry v. McGinty (1979), 60 Ohio St.2d 92, 14 O.O.3d 331, 397 N.E.2d 1190. While petitioner could challenge the imposition of this probation condition and its alleged violation by way of direct appeal, this would not be an adequate remedy because he would have served the entire sentence by the time the appeal is resolved.'

We find that the condition of probation in this case (leaving the state of Ohio and remaining outside the state of Ohio for five years) is unconstitutional. State v. Livingston (1976), 53 Ohio App.2d 195, 7 O.O.3d 258, 372 N.E.2d 1335, and In re Miller (1992), 82 Ohio App.3d 81, 611 N.E.2d 451.

Because petitioner is being incarcerated as a result of the alleged violation of this unconstitutionally imposed probation condition, we hereby grant his petition. We hereby order John Kohl, Wood County Sheriff, to release petitioner immediately.

The respondent shall pay all court costs incurred in connection with this petition.

Judgment accordingly.

Glasser, P.J., Handwork and Abood, JJ., concur.