State ex rel. Morgan v. Fais (Slip Opinion) ( 2016 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Morgan v. Fais, Slip Opinion No. 2016-Ohio-1564.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2016-OHIO-1564
[THE STATE EX REL.] MORGAN, APPELLANT, v. FAIS, JUDGE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Morgan v. Fais, Slip Opinion
No. 2016-Ohio-1564.]
Procedendo―Writ properly denied when act requested by relator has already been
performed by respondent―Procedendo will not lie to compel performance
of act already performed.
(No. 2015-0782—Submitted January 26, 2016—Decided April 19, 2016.)
APPEAL from the Court of Appeals for Franklin County, No. 14AP-910,
2015-Ohio-1514.
_____________________
Per Curiam.
{¶ 1} We affirm the court of appeals’ judgment denying a petition for a writ
of procedendo.
{¶ 2} Relator-appellant, David A. Morgan, was convicted of murder in
1986. In April 2014, while incarcerated, he filed in the trial court a motion to vacate
SUPREME COURT OF OHIO
his conviction and sentence. When no action was taken on his motion, Morgan filed
a petition in procedendo in the Tenth District Court of Appeals on November 5,
2014.
{¶ 3} On November 18, 2014, respondent-appellee, Judge David W. Fais of
the Franklin County Court of Common Pleas, denied Morgan’s trial court motion.
Judge Fais, through counsel, then filed a motion to dismiss in the procedendo
action, attaching his November 18 entry denying Morgan’s motion. The court of
appeals magistrate converted the motion to dismiss to one for summary judgment
and recommended that the court of appeals grant the motion. The court of appeals
adopted the magistrate’s opinion and denied the writ. Morgan appealed.
{¶ 4} A writ of procedendo will not issue to compel the performance of a
duty that has already been performed. State ex rel. Hazel v. Bender, 129 Ohio St. 3d
496, 2011-Ohio-4197, 954 N.E.2d 114, ¶ 1; State ex rel. Howard v. Skow, 102
Ohio St. 3d 423, 2004-Ohio-3652, 811 N.E.2d 1128, ¶ 9; State ex rel. Grove v.
Nadel, 84 Ohio St. 3d 252, 253, 703 N.E.2d 304 (1998).
{¶ 5} Judge Fais has performed the duty requested by ruling on Morgan’s
motion to vacate. Morgan’s action in procedendo is therefore moot, as correctly
held by the court of appeals. The judgment denying the writ is affirmed.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
_________________
David A. Morgan, pro se.
Ron O’Brien, Franklin County Prosecuting Attorney, and Jeffrey C. Rogers,
Assistant Prosecuting Attorney, for appellee.
_________________
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