State ex rel. McCoy v. Heath

2014 Ohio 4716

• Court: Ohio Court of Appeals
• Decided: October 20, 2014
• Docket: 2014CA00061
• Status: Published

Opinion

[Cite as State ex rel. McCoy v. Heath, 2014-Ohio-4716.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, EX REL., JUDGES: MATTHEW WILLIAM MCCOY Hon. William B. Hoffman, P.J. Hon. Sheila G. Farmer, J. Relator Hon. Patricia A. Delaney, J.

-vs- Case No. 2014CA00061

JUDGE TARYN L. HEATH OPINION Respondent

CHARACTER OF PROCEEDING: Writ of Mandamus

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: October 20, 2014

APPEARANCES:

For Realtor For Respondent

MATTHEW WILLIAM MCCOY JOHN D. FERRERO, JR. 640-419 Stark County Prosecuting Attorney P.O. Box 8107 Mansfield, Ohio 44901 RONALD MARK CALDWELL Assistant Prosecuting Attorney Appellate Section Stark County Prosecutor's Office 110 Central Plaza, South, Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2014CA00061 2

Hoffman, P.J.

{¶1} Relator, Matthew William McCoy, has filed a Complaint for Writ of

Mandamus requesting Respondent be ordered to rule on a motion filed in the trial court

on September 25, 2013. In that motion, Relator sought to have Respondent remove the

word “mandatory” from Relator’s sentence.

{¶2} Respondent has filed a motion to dismiss the complaint arguing the

complaint is now moot because on April 2, 2014 Respondent issued a Nunc Pro Tunc

sentencing entry which eliminates any reference to a mandatory sentence.

{¶3} 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.

{¶4} However, 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. Stark County, Case No. 2014CA00061 3

{¶5} Respondent has in essence now ruled on the September 25, 2013 motion

by granting the relief requested by Relator. For this reason, the motion to dismiss is

granted, and the instant petition is dismissed as moot.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur