State ex rel. Rose v. McGinty

[Cite as State ex rel. Rose v. McGinty, 128 Ohio St. 3d 371, 2011-Ohio-761.]
THE STATE EX REL. ROSE, APPELLANT, v. MCGINTY, JUDGE, APPELLEE.
[Cite as State ex rel. Rose v. McGinty, 128 Ohio St. 3d 371, 2011-Ohio-761.]
Appeal from court of appeals’ judgment denying writ of procedendo to compel
common pleas court judge to issue a new judgment of conviction and
sentence — Original sentencing entry complied with Crim.R. 32(C) and
R.C. 2505.02 — Judgment affirmed.
(No. 2010-2008 — Submitted February 16, 2011 — Decided February 23, 2011.)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 95451, 2010-Ohio-5020.
__________________
Per Curiam.
{¶ 1} We affirm the judgment of the court of appeals denying a writ of
procedendo to compel appellee, Cuyahoga County Court of Common Pleas Judge
Timothy J. McGinty, to enter a new judgment of conviction and sentence for
appellant, Floyd Rose, in State v. Rose, Cuyahoga Cty. C.P. case No. CR-07-
492008-B, that complies with the requirements of Crim.R. 32(C) and R.C.
2505.02.
{¶ 2} “A writ of procedendo will not issue to compel the performance of
a duty that has already been performed.” State ex rel. Sevayega v. McMonagle,
122 Ohio St. 3d 54, 2009-Ohio-2367, 907 N.E.2d 1180, ¶ 1; State ex rel. Rose v.
McGinty, 123 Ohio St. 3d 86, 2009-Ohio-4050, 914 N.E.2d 366, ¶ 2. We have
construed Crim.R. 32(C) to mean that a “judgment of conviction is a final
appealable order under R.C. 2505.02 when it sets forth (1) the guilty plea, the jury
verdict, or the finding of the court upon which the conviction is based; (2) the
sentence; (3) the signature of the judge; and (4) entry on the journal by the clerk
of court.” State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-3330, 893 N.E.2d 163,
SUPREME COURT OF OHIO
syllabus. The March 27, 2007 sentencing entry for Rose fully complied with
Crim.R. 32(C) and R.C. 2505.02 because it states that he pleaded guilty, it lists
the crimes upon which his convictions and sentence were based, it sets forth the
sentence, it is signed by the judge, and it was entered upon the journal by the clerk
of court.
{¶ 3} As we recently held, our holding in Baker requires only “ ‘a full
resolution of those counts for which there were convictions. It does not require a
reiteration of those counts and specifications for which there were no convictions,
but were resolved in other ways, such as dismissals, nolled counts, or not guilty
findings.’ ” (Emphasis sic.) State ex rel. Davis v. Cuyahoga Cty. Court of
Common Pleas, 127 Ohio St. 3d 29, 2010-Ohio-4728, 936 N.E.2d 41, ¶ 2, quoting
State ex rel. Davis v. Cuyahoga Cty. Court of Common Pleas, Cuyahoga App. No.
93814, 2010-Ohio-1066, 2010 WL 972808, ¶ 8. Therefore, notwithstanding
Rose’s argument to the contrary, the sentencing entry did not need to include the
dispositions of the counts that Rose was originally charged with but that were not
the basis for his convictions and sentence. Those counts were nolled. See
http://cpdocket.cp.cuyahogacounty.us for case No. CR-07-492008-B, Mar. 21,
2007 Docket Entry.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Floyd Rose, pro se.
William D. Mason, Cuyahoga County Prosecuting Attorney, and James E.
Moss, Assistant Prosecuting Attorney, for appellee.
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