State ex rel. Foster v. DeWeese

2011 Ohio 3511

• Court: Ohio Court of Appeals
• Decided: July 14, 2011
• Docket: 11CA1
• Status: Published

Opinion

[Cite as State ex rel. Foster v. DeWeese, 2011-Ohio-3511.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE OF OHIO, EX REL., : W. Scott Gwin, P.J. JOSEPH FOSTER : Sheila G. Farmer, J. : Julie A. Edwards, J. Relator : : Case No. 11CA1 -vs- : : : OPINION JUDGE JAMES DEWEESE

Respondent

CHARACTER OF PROCEEDING: Writ of Mandamus Complaint

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: July 14, 2011

APPEARANCES:

For Relator For Respondent

JOSEPH FOSTER CHRISTOPHER R. TUNNELL Inmate #523-838 Assistant Prosecuting Attorney Mansfield Correctional Institute Richland County Prosecutor’s Office P.O. Box 788 38 South Park, Second Floor Mansfield, Ohio 44901 Mansfield, Ohio 44902 [Cite as State ex rel. Foster v. DeWeese, 2011-Ohio-3511.]

Edwards, J.

{¶1} Relator, Joseph Foster, has filed a Complaint for Writ of Mandamus and

Procedendo requesting the trial court be ordered to enter a final, appealable order in

Richland County Court of Common Pleas case number 2006-CR-0804-D. Respondent,

Judge James DeWeese has filed a Motion to Dismiss wherein Respondent avers he

fulfilled his duty to provide Relator with a final, appealable order.

{¶2} For a writ of mandamus to issue, the relator must have a clear legal right

to the relief prayed for, the respondent must be under a clear legal duty to perform the

requested act, and relator must have no plain and adequate remedy in the ordinary

course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50,

451 N.E.2d 225.

{¶3} To be entitled to a writ of procedendo, “a relator must establish a clear

legal right to require the court to proceed, a clear legal duty on the part of the court to

proceed, and the lack of an adequate remedy in the ordinary course of law.” Miley,

supra, at 65, citing State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas

(1995), 72 Ohio St.3d 461, 462. The Supreme Court has noted, “The writ of procedendo

is merely an order from a court of superior jurisdiction to one of inferior jurisdiction to

proceed to judgment. It does not in any case attempt to control the inferior court as to

what that judgment should be.” State ex rel. Davey v. Owen (1937), 133 Ohio St. 96,

*106, 12 N.E.2d 144, 149.

{¶4} The trial court entered a sentencing order on April 3, 2007. In that order,

the trial court sentenced Relator on Count 1 of the indictment. This was the only count

upon which Relator was sentenced despite the fact Relator had been convicted on Richland County App. Case No. 11CA1 3

Counts 1 and 3. On April 17, 2007, the trial court issued an entry explaining that the

reason the entry of April 3, 2007, only contained a sentence as to Count 1 was because

Counts 1 and 3 had been merged as allied offenses of similar import. Relator’s

sentence was not changed by the April 17, 2007 entry.

{¶5} The Supreme Court has outlined the necessary requirements for an order

to be a final, appealable order in a criminal case, “We now hold that a judgment of

conviction is a final appealable order under R.C. 2505.02 when it sets forth (1) the guilty

plea, the jury verdict, or the finding of the court upon which the conviction is based; (2)

the sentence; (3) the signature of the judge; and (4) entry on the journal by the clerk of

court. Simply stated, a defendant is entitled to appeal an order that sets forth the

manner of conviction and the sentence.” State v. Baker (2008), 119 Ohio St.3d 197,

201, 893 N.E.2d 163, 167.

{¶6} We find the order of April 3, 2007 contains (1) the manner of conviction

which was by way of the jury’s guilty verdict, (2) the sentence of ten years on Count 1

plus an additional three years for the gun specification, (3) the signature of the judge,

and (4) the time stamp indicating the entry was entered on the clerk’s journal. Because

the entry contained all of the requirements to be a final, appealable order, we find

Respondent fulfilled his duty. Richland County App. Case No. 11CA1 4

{¶7} The Supreme Court has held procedendo and mandamus will not issue

where the requested relief has been obtained, “Neither procedendo nor mandamus will

compel the performance of a duty that has already been performed.” State ex rel.

Kreps v. Christiansen (2000), 88 Ohio St.3d 313, 318, 725 N.E.2d 663, 668.

{¶8} Because the requested relief has already been obtained, the writs do not

lie, and the motion to dismiss is granted.

By: Edwards, J.

Gwin, P.J. and

Farmer, J. concur

______________________________

JUDGES

JAE/as0608 [Cite as State ex rel. Foster v. DeWeese, 2011-Ohio-3511.]

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO, EX REL. : JOSEPH FOSTER : : Relator : : : -vs- : JUDGMENT ENTRY : JUDGE JAMES DEWEESE : : Respondent : CASE NO. 11CA1

For the reasons stated in our accompanying Memorandum-Opinion on file, the

complaint is dismissed. Costs assessed to relator.

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