State Ex Rel. Miller v. Lucas County, Unpublished Decision (5-17-1999)

This matter is before the court on the petition of relator, Thomas S. Miller, who requests that this court issue a writ of mandamus, pursuant to R.C. 2731.04, ordering respondent, Judge William J. Skow, to "make a DE NOVA, (sic) review and factual determination of the total amount of jail time credit" to which relator is entitled. Attached to relator's petition are copies of two judgment entries in regard to motions filed by relator in the trial court. One judgment entry, filed November 30, 1998, granted relator's motion for jail time credit and ordered that relator be granted credit for an additional fourteen days spent in local custody. A second judgment entry, filed March 16, 1999, denied relator's motion to correct the entry of jail time credit.

As noted by the Ohio Supreme Court in State ex. rel.Viox Builders, Inc. v. Lancaster (1989), 46 Ohio St.3d 144, 145:

"To prevail in mandamus, relator must demonstrate that:

(1) it has a clear right to the relief requested, (2) respondents are under a clear legal duty to perform the requested act, and (3) relator has no plain and adequate remedy in the ordinary course of the law." (Citation omitted.)

When a relator fails to fulfill any of these requirements, the writ will not lie. State ex rel. Taxpayers League of N.Ridgeville v. Noll (1984), 11 Ohio St.3d 190, 192.

An extraordinary remedy such as mandamus is only available when the usual forms of procedure are incapable of affording relief. State ex rel. Woodbury v. Spitler (1973),34 Ohio St.2d 134. In State ex rel. Berger v. McMonagle (1983),6 Ohio St.3d 28, 30, the Ohio Supreme Court stated:

"It is firmly established that the writ of mandamus will not issue ``* * * where the relator has or had available a clear, plain and adequate remedy in the ordinary course of the law.' (Citations omitted.) Moreover, it is axiomatic that a `` * * * discretionary right of appeal * * * [constitutes] a sufficiently plain and adequate remedy in the ordinary course of the law.' (Citation omitted.)"

Because an appeal is a plain and adequate remedy in the ordinary course of the law to address relator's jail time credit issue, a writ of mandamus will not issue.

Accordingly, relator's petition in mandamus is found not well-taken and is denied. The petition for writ of mandamus is dismissed at relator's costs. It is so ordered.

WRIT DISMISSED.