State ex rel. Berlingeri

2014 Ohio 406

• Court: Ohio Court of Appeals
• Decided: February 4, 2014
• Docket: 100671
• Status: Published

Opinion

[Cite as State ex rel. Berlingeri, 2014-Ohio-406.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100671

STATE OF OHIO, EX REL. DOMINIC BERLINGERI RELATOR

vs.

JUDGE BRIAN J. CORRIGAN RESPONDENT

JUDGMENT: WRIT DENIED

Writ of Procedendo Motion No. 470804 Order No. 471571

RELEASE DATE: February 4, 2014 FOR RELATOR

Dominic Berlingeri, Jr. Inmate No. A 583-358 Allen Correctional Institution Attn: Unit C 2338 North West Street Lima, OH 45801

ATTORNEYS FOR RESPONDENT

Timothy J. McGinty Cuyahoga County Prosecutor BY: James E. Moss Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, OH 44113 SEAN C. GALLAGHER, J.:

{¶1} On November 26, 2013, relator Dominic Berlingeri commenced this

procedendo action against Judge Brian Corrigan to compel him to rule on his petition to

vacate allied offenses of similar import in State v. Berlingeri, Cuyahoga C.P. No.

CR-527719-G, which was filed on March 29, 2013. On December 18, 2013, respondent

judge filed a motion for summary judgment, which Berlingeri has not opposed. The

motion for summary judgment is granted, and the petition is denied for the reasons that

follow.

{¶2} Attached to the motion for summary judgment is a copy of a journal entry that

indicates that on December 17, 2013, Judge Corrigan denied Berlingeri’s petition to

vacate allied offenses of similar import, rendering the petition for a writ of procedendo

moot. State ex rel. Gantt v. Coleman, 6 Ohio St.3d 5, 450 N.E.2d 1163 (1983); State ex

rel. Jerninghan v. Cuyahoga Cty. Court of Common Pleas, 74 Ohio St.3d 278, 658

N.E.2d 723 (1996). Additionally, the petition does not comply with Loc.App.R.

45(B)(1)(a), which is a separate ground that warrants dismissal. State ex rel. Fuller v.

Friedland, 8th Dist. Cuyahoga No. 76750, 1999 Ohio App. LEXIS 4856 (Oct. 14, 1999),

citing State ex rel. Sherrills v. Court of Common Pleas, 8th Dist. Cuyahoga No. 69707

(Dec. 1, 1995) (“failure to provide this court with a supporting affidavit warrants

dismissal”). {¶3} Accordingly, we grant the respondent’s unopposed motion for summary

judgment. Respondent to bear costs, but costs are waived. It is further ordered that the

clerk shall serve upon all parties notice of this judgment and date of entry pursuant to

Civ.R. 58(B).

{¶4} Writ denied.

SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, A.J., and KENNETH A. ROCCO, J., CONCUR