State ex rel. Montanez v. Sutula ( 2014 )

[Cite as State ex rel. Montanez v. Sutula, 2014-Ohio-3825.]
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