State ex rel. Nash v. Fuerst

[Cite as State ex rel. Nash v. Fuerst, 2013-Ohio-3254.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99839
STATE OF OHIO, EX REL.
TIMOTHY M. NASH
RELATOR
vs.
HONORABLE JUDGE NANCY FUERST
RESPONDENT
JUDGMENT:
WRIT DENIED
Writ of Mandamus
Motion Nos. 465359 and 465703
Order No. 466008
RELEASE DATE: July 19, 2013
FOR RELATOR
Timothy M. Nash, pro se
Inmate No. 631-040
Richland Correctional Institution
P.O. Box 8107
Mansfield, Ohio 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, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Timothy M. Nash (“Nash”) has petitioned this court for a writ of mandamus.
Nash seeks an order from this court that requires Judge Nancy Fuerst to render rulings on
“various motions and postconviction petitions” filed in Cuyahoga C.P. Nos. CR-556979
and CR-553521. Nash generally refers to summary judgment motions, postconviction
petitions, and motions for jail time credit. More specifically, Nash has identified motions
and/or petitions filed on October 25, 2012, November 8, 2012, and December 12, 2012.
{¶2} Judge Fuerst has filed a motion for summary judgment. Nash has filed
documents styled “Summary Judgment as a Matter of Law, Instanter Per 2953.21, et seq.”
and “Supplemental Brief for Issuance”; both of which concern an alleged entitlement to
247 days of jail time credit in CR-556979. Judge Fuerst filed a brief in opposition citing
the trial court’s entry that was journalized in CR-556979 on August 6, 2012, which,
among other things, ordered “jail credit from 11-28-11 to 8-1-11 = 247 days.” For the
reasons that follow, we grant Judge Fuerst’s motion for summary judgment and deny
Nash’s motion for summary judgment.
{¶3} In CR-553521 and CR-556979, Nash filed motions for post conviction relief
on November 8, 2012, and for summary judgment on December 7, 2012. Additionally,
in CR-556979, Nash filed a motion for jail time credit on October 23, 2012. The trial
court denied all of these motions in both cases by entries that were journalized on May
23, 2013. In CR-556979, the trial court additionally noted that Nash “was credited with
his time served on 8/6/12.” The trial court further indicated that “all remaining motions
are hereby rendered moot.” The trial court issued detailed findings of fact and
conclusions of law in both cases.
{¶4} Attached to Judge Fuerst’s motion for summary judgment are copies of the
entries journalized on May 23, 2013, which demonstrate that rulings have been rendered
with regard to Nash’s petitions for postconviction relief, motions for summary judgment,
and his motion for jail time credit. Thus, Nash is not entitled to a writ of mandamus
because it is moot. State ex rel. Culgan v. Kimbler, 132 Ohio St.3d 480,
2012-Ohio-3310, 974 N.E.2d 88 (a writ of mandamus will not issue to compel an act
already performed); see also State ex rel. Pettway v. Cuyahoga Cty. Court of Common
Pleas, 8th Dist. No. 99259, 2013-Ohio-1567, ¶ 2.
{¶5} To the extent Nash is seeking a writ of mandamus to compel an order for jail
time credit from the trial court, “a claim for jail time credit is remediable in the ordinary
course of the law by motion and appeal.” State ex rel. Franks v. Cosgrove, Judge, 135
Ohio St.3d 249, 2013-Ohio-402, 985 N.E.2d 1264, ¶ 1. Mandamus is precluded if relator
has an adequate remedy of law even if relator fails to use it. State ex rel. Nash v. Fuerst,
8th Dist. No. 99027, 2013-Ohio-592, ¶ 6, citing State ex rel. Tran v. McGrath, 78 Ohio
St.3d 45, 1997-Ohio-245, 676 N.E.2d 108, and State ex rel. Boardwalk Shopping Ctr.,
Inc. v. Court of Appeals for Cuyahoga Cty., 56 Ohio St.3d 33, 564 N.E.2d 86 (1990).
{¶6} Accordingly, we grant Judge Fuerst’s motion for summary judgment and
deny Nash’s motion for summary judgment. Relator to pay costs. The court directs the
clerk of court to serve all parties with notice of this judgment and its date of entry upon
the journal as required by Civ.R. 58(B).
{¶7} Writ denied.
EILEEN T. GALLAGHER, JUDGE
LARRY A. JONES, SR., P.J., and
KENNETH A. ROCCO, J., CONCUR
KEYWORD SUMMARY: