Wuescher v. Whitney, 07cad110064 (1-15-2008)

Ohio Court of Appeals

Wuescher v. Whitney, 07cad110064 (1-15-2008)

2008 Ohio 118

CourtOhio Court of Appeals

DecidedJanuary 15, 2008

DocketNo. 07CAD110064.

StatusPublished

This text of 2008 Ohio 118 (Wuescher v. Whitney, 07cad110064 (1-15-2008)) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Wuescher v. Whitney, 07cad110064 (1-15-2008), 2008 Ohio 118 (Ohio Ct. App. 2008).

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Opinion

OPINION {¶ 1} Relator has filed a Complaint for Writ of Mandamus requesting this Court vacate costs which were imposed by the trial court at the time of sentencing. Relator suggests he could not appeal the trial court's sentencing entry because it was not a final appealable order. He maintains the sentencing entry was not final because the trial court failed to include requisite findings to support the imposition of the court costs. We disagree.

{¶ 2} Relator was convicted of Trafficking in Drugs, a felony of the third degree, and Trafficking in Drugs, a felony of the fourth degree. He was sentenced to a period of three years on the first count and to a term of community control on the felony of the fourth degree. In addition, the court imposed various court costs.

{¶ 3} To be entitled to the issuance of a writ of mandamus, relator must demonstrate: (1) a clear legal right to the relief prayed for; (2) a clear legal duty on the respondent's part to perform the act; and, (3) that there exists no plain and adequate remedy in the ordinary course of law. State ex rel. Master v. Cleveland (1996), 75 Ohio St.3d 23, 26-27,661 N.E.2d 180; State ex rel. Harris v. Rhodes (1978), 5 Ohio St.2d 41,324 N.E.2d 641, citing State ex rel. National City Bank v. Bd. ofEducation (1977) 520 Ohio St.2d 81, 369 N.E.2d 1200.

{¶ 4} The appropriate forum for challenging court costs is by way of appeal from the sentencing entry; therefore, an adequate remedy at law exists for making such a challenge. See State of Ohio ex rel. Biros v.Logan, 2003 WL 22326666, *2 (Ohio App. 11 Dist.) ([T]he propriety of a decision to impose court costs on a convicted defendant can only be contested in a direct appeal from the sentencing judgment.). *Page 3

{¶ 5} Relator has not demonstrated the necessary elements for the issuance of a writ of mandamus. We find Relator has or had an adequate remedy at law by way of a direct appeal of his sentence, therefore, the writ will not issue.

{¶ 6} WRIT DENIED.

Hoffman, P.J., Wise, J. and Edwards concur.

JUDGMENT ENTRY For the reasons stated in the Memorandum-Opinion on file, Relator's Writ of Mandamus is hereby denied. Costs taxed to Relator. *Page 1

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OPINION {¶ 1} Relator has filed a Complaint for Writ of Mandamus requesting this Court vacate costs which were imposed by the trial court at the time of sentencing. Relator suggests he could not appeal the trial court's sentencing entry because it was not a final appealable order. He maintains the sentencing entry was not final because the trial court failed to include requisite findings to support the imposition of the court costs. We disagree.

{¶ 2} Relator was convicted of Trafficking in Drugs, a felony of the third degree, and Trafficking in Drugs, a felony of the fourth degree. He was sentenced to a period of three years on the first count and to a term of community control on the felony of the fourth degree. In addition, the court imposed various court costs.

{¶ 3} To be entitled to the issuance of a writ of mandamus, relator must demonstrate: (1) a clear legal right to the relief prayed for; (2) a clear legal duty on the respondent's part to perform the act; and, (3) that there exists no plain and adequate remedy in the ordinary course of law. State ex rel. Master v. Cleveland (1996), 75 Ohio St.3d 23, 26-27,661 N.E.2d 180; State ex rel. Harris v. Rhodes (1978), 5 Ohio St.2d 41,324 N.E.2d 641, citing State ex rel. National City Bank v. Bd. ofEducation (1977) 520 Ohio St.2d 81, 369 N.E.2d 1200.

{¶ 4} The appropriate forum for challenging court costs is by way of appeal from the sentencing entry; therefore, an adequate remedy at law exists for making such a challenge. See State of Ohio ex rel. Biros v.Logan, 2003 WL 22326666, *2 (Ohio App. 11 Dist.) ([T]he propriety of a decision to impose court costs on a convicted defendant can only be contested in a direct appeal from the sentencing judgment.). *Page 3

{¶ 5} Relator has not demonstrated the necessary elements for the issuance of a writ of mandamus. We find Relator has or had an adequate remedy at law by way of a direct appeal of his sentence, therefore, the writ will not issue.

{¶ 6} WRIT DENIED.

Hoffman, P.J., Wise, J. and Edwards concur.

JUDGMENT ENTRY For the reasons stated in the Memorandum-Opinion on file, Relator's Writ of Mandamus is hereby denied. Costs taxed to Relator. *Page 1

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