State ex rel. McCoy v. Heath

[Cite as State ex rel. McCoy v. Heath, 2014-Ohio-4716.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX REL., JUDGES:
MATTHEW WILLIAM MCCOY Hon. William B. Hoffman, P.J.
Hon. Sheila G. Farmer, J.
Relator Hon. Patricia A. Delaney, J.
-vs- Case No. 2014CA00061
JUDGE TARYN L. HEATH
OPINION
Respondent
CHARACTER OF PROCEEDING: Writ of Mandamus
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: October 20, 2014
APPEARANCES:
For Realtor For Respondent
MATTHEW WILLIAM MCCOY JOHN D. FERRERO, JR.
640-419 Stark County Prosecuting Attorney
P.O. Box 8107
Mansfield, Ohio 44901 RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
Stark County Prosecutor's Office
110 Central Plaza, South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2014CA00061 2
Hoffman, P.J.
{¶1} Relator, Matthew William McCoy, has filed a Complaint for Writ of
Mandamus requesting Respondent be ordered to rule on a motion filed in the trial court
on September 25, 2013. In that motion, Relator sought to have Respondent remove the
word “mandatory” from Relator’s sentence.
{¶2} Respondent has filed a motion to dismiss the complaint arguing the
complaint is now moot because on April 2, 2014 Respondent issued a Nunc Pro Tunc
sentencing entry which eliminates any reference to a mandatory sentence.
{¶3} For a writ of mandamus to issue, the relator must have a clear legal right
to the relief prayed for, the respondent must be under a clear legal duty to perform the
requested act, and relator must have no plain and adequate remedy in the ordinary
course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50,
451 N.E.2d 225.
{¶4} However, the Supreme Court has held procedendo and mandamus will
not issue where the requested relief has been obtained, “Neither procedendo nor
mandamus will compel the performance of a duty that has already been performed.”
State ex rel. Kreps v. Christiansen (2000), 88 Ohio St.3d 313, 318, 725 N.E.2d 663,
668.
Stark County, Case No. 2014CA00061 3
{¶5} Respondent has in essence now ruled on the September 25, 2013 motion
by granting the relief requested by Relator. For this reason, the motion to dismiss is
granted, and the instant petition is dismissed as moot.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur