DocketNumber: No. 05 JE 9.
Citation Numbers: 2006 Ohio 5409
Judges: PER CURIAM.
Filed Date: 10/13/2006
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} On August 5, 2005, Respondent filed a motion to dismiss the petition claiming it was moot. However, on September 29, 2005 this Court overruled the motion to dismiss, noting that the judgment on which Respondent relied addressed only a separately filed "Motion to Vacate Illegally Imposed Sentence" (filed May 16, 2005), and did not address the claims raised in the original petition to vacate sentence filed on March 4, 2003. Respondent was granted thirty days to show cause why a writ should not issue. Subsequently, on October 13, 2005, a notice was filed that Respondent had entered a ruling on October 7, 2005 overruling the petition to vacate or set aside the sentence imposed on Relator. Respondent renewed its motion to dismiss on the grounds the petition was moot. The trial court docket for underlying Common Pleas Case No. 02 CR 91 involving this Relator also reveals that a timely notice of appeal was filed directed to the October 7, 2005, judgment overruling the petition to vacate or set aside sentence. (Appeals Case No. 05 JE 54).
{¶ 3} In order to be entitled to a writ of mandamus a party must establish that there is a clear legal right to the relief prayed for, that the respondent has a clear legal duty to perform the requested act and that there is no plain and adequate remedy in the ordinary course of law. State ex rel. Luna v. Huffman
(1996),
{¶ 4} In addition, it is an established principle of law that a writ of mandamus will not issue to compel an act already performed. State ex rel. Jerninghan v. Cuyahoga Cty. Court ofCommon Pleas (1996),
{¶ 5} Finally, the petition filed herein is deficient because it does not comply with the legal requirement of an accompanying affidavit describing each civil action or appeal of a civil action filed in the previous five years. R.C. §
{¶ 6} For the foregoing reasons, this petition is dismissed.
{¶ 7} Costs taxed against Petitioner.
{¶ 8} Final order. Clerk to serve notice as provided by the Civil Rules.
Donofrio, P.J., concurs.
Vukovich, J., concurs.
Waite, J., concurs.