State ex rel. Montanez v. Sutula

2014 Ohio 3825

Opinion

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 101525

STATE OF OHIO EX REL.,

SAMMY MONTANEZ

RELATOR

vs.

JUDGE JOHN D. SUTULA

RESPONDENT

JUDGMENT:

WRIT DENIED

Writ of Procedendo

Order No. 477251

Motion No. 476461

RELEASE DATE: September 3, 2014

FOR RELATOR

Sammy Montanez, pro se Mansfield Correctional Institution Inmate No. 492-270 P.O. Box 788 Mansfield, OH 44901

ATTORNEYS FOR RESPONDENT

Timothy J. McGinty Cuyahoga County Prosecutor

By: James E. Moss Assistant County Prosecutor 9th Floor Justice Center 1200 Ontario Street Cleveland, OH 44113

MELODY J. STEWART, J.:

{¶1} Sammy Montanez has filed a complaint for a writ of procedendo. Montanez seeks a writ that requires Judge John D. Sutula to render a ruling with regard to a motion to “issue revised journal entry of conviction” filed on March 10, 2014, that he alleges is necessary in order to create a final appealable order in compliance with Crim.R. 32(C) in State v. Montanez, Cuyahoga C.P. No. CR-04-454739-A. We decline to issue a writ of procedendo because respondent has performed the requested relief and the writ is now moot.

{¶2} Attached to respondent’s motion for summary judgment is a copy of a judgment entry, journalized on July 3, 2014, which demonstrates that the court has ordered Montanez to be returned to the trial court’s jurisdiction for a resentencing hearing, and the order specifically references this original action as the impetus of the order. Accordingly, Montanez’s request for a writ of procedendo is moot. State ex rel. Fontanella v. Kontos, 117 Ohio St.3d 514, 2008-Ohio-1431, 885 N.E.2d 220; State ex rel. Reynolds v. Basinger, 99 Ohio St.3d 303, 2003-Ohio-3631, 791 N.E.2d 459. A writ of procedendo will not issue to compel the performance of a duty that has already been performed. State ex rel. Rose v. McGinty, 123 Ohio St.3d 86, 2009-Ohio-4050, 914 N.E.2d 366; State ex rel. Sevayega v. McMonagle, 122 Ohio St.3d 54, 2009-Ohio-2367, 907 N.E.2d 1180.

{¶3} Judge Sutula’s motion for summary judgment is granted. Costs to respondent. Costs waived. The court directs the clerk of courts to serve all parties with notice of this judgment and the date of entry upon the journal as required by Civ.R. 58(B).

{¶4} Writ denied.

__________________________________________

MELODY J. STEWART, JUDGE

MARY J. BOYLE, A.J., and LARRY A. JONES, J., CONCUR