State ex rel. Dubose v. Evans

[Cite as State ex rel. Dubose v. Evans, 2013-Ohio-2960.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE ex rel. EDWARD DUBOSE, ) ) CASE NO. 13 MA 38 RELATOR, ) ) OPINION - VS - ) AND ) JUDGMENT ENTRY JUDGE JAMES EVANS, ) ) RESPONDENT. )

CHARACTER OF PROCEEDINGS: Relator’s Petition for Writ of Mandamus; Respondent’s Motion to Dismiss.

JUDGMENT: Petition for Writ of Mandamus Dismissed As Moot.

APPEARANCES: For Relator: Edward Dubose, Pro Se #A378-874 Belmont Correctional Institution P.O. Box 540 St. Clairsville, Ohio 43950

For Respondent: Attorney Paul Gains Prosecuting Attorney Attorney Ralph Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503

JUDGES: Hon. Joseph J. Vukovich Hon. Gene Donofrio Hon. Mary DeGenaro

Dated: June 19, 2013 [Cite as State ex rel. Dubose v. Evans, 2013-Ohio-2960.] PER CURIAM:

¶{1} On September 10, 2012, Edward Dubose filed a motion for additional jail time credit in the Mahoning County Common Pleas Court in case number 99CR345. On March 28, 2013, he filed a petition for a writ of mandamus in this court asking that we order the trial court to rule on his motion. In April, the state filed a response to his motion in the trial court and then asked this court for leave to respond to the request for a writ, which we granted. ¶{2} On April 25, 2013, the trial court granted the motion of Edward Dubose and gave him an additional 282 days of jail time credit. We thus deny the within petition as it has been rendered moot. In doing so, we note that when a petitioner believes that a judge has unnecessarily delayed in ruling or has otherwise refused to issue a judgment, the most appropriate petition to file is one seeking procedendo, asking that the court “proceed” to judgment. See State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, 931 N.E.2d 110, ¶ 32; State ex rel. Dehler v. Sutula, 74 Ohio St.3d 33, 35, 656 N.E.2d 332 (1995). Still, a mandamus action can be used instead. Id.; State ex rel. Reynolds v. Basinger, 99 Ohio St.3d 303, 2003-Ohio- 3631, 791 N.E.2d 459, ¶ 5. ¶{3} To be entitled to the writ, the petitioner must establish a clear legal right to the requested relief, a clear legal duty on the part of the judge to provide it, and the lack of an adequate remedy in the ordinary course of law. See State ex rel. Stanley v. D’Apolito, 7th Dist. No. 10MA114, 2010-Ohio-4850, ¶ 3. In ruling on a request for a writ of mandamus or procedendo in such a scenario, we do not tell the trial judge how to rule but instead we tell the judge whether or not they have to immediately take action in the case. Id. ¶{4} Thus, where a petitioner seeks to compel a trial court to rule on a pending motion, the trial court’s grant or denial of the motion renders the action moot. State ex rel. Howard v. Skow, 102 Ohio St.3d 423, 811 N.E.2d 1128, 2004-Ohio-3652, ¶ 9 (explaining that the court reviewing a request for a writ can consider the trial court’s acts after the petition is filed); State ex rel. Grove v. Nadel, 84 Ohio St.3d 252, 253, 703 N.E.2d 304 (1998) (“Neither procedendo nor mandamus will compel the

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performance of a duty that has already been performed.”); State ex rel. Howard v. Belmont County Common Pleas Court, 7th Dist. No. 09BE22, 2009-Ohio-6811, ¶ 7. In conclusion, since the trial court has ruled on the motion for additional jail time credit, petitioner’s request for a writ of mandamus is moot. ¶{5} The request for a writ is hereby denied. ¶{6} Final Order. Clerk to serve notice as provided by the Civil Rules.

Vukovich, J., concurs. Donofrio, J., concurs. DeGenaro, J., concurs.