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Criminal Law Casebook
Franklin County Criminal Law Casebook
Reproduced with permission from:
David L. Strait
Franklin County Public Defender Office
Revised Code Chapter 2731
Nature of the Writ
State ex rel. Howard v. Court of Common Pleas of Lucas County
(2001), 142 Ohio App. 3d 761 -- Adjudicated vexatious litigator failed to apply for leave to proceed. Mandamus action dismissed as this omission means he can not demonstrate a clear right to the relief sought or that respondents have a clear legal duty to perform the act requested.
State ex rel. Cincinnati Enquirer v. Winkler
, 149 Ohio App. 3d 350,
-- Newspaper sought access to sealed court records of a police officer who had been acquitted in a notorious case. Court agrees to determine constitutionality of expungement statute adjunct to a mandamus action, without requiring paper to seek declaratory judgment. To save the statute from being found unconstitutional, it is interpreted to require consideration of the public's right of access in cases of social, historic or political significance. Also see
State ex rel. Cincinnati Enquirer v. Winkler
, 150 Ohio App. 3d 10,
, holding that the trial judge properly ordered officer's record sealed. See dissent.
State ex rel. Newman v. Gretrick
, 155 Ohio App. 3d 696,
-- Writ of procedendo granted divorce litigant after an inordinate amount of time had passed for issuing a decision in the case. Though the 90 days allocated by Sup. R. 40 for issuing a decision had passed, rules do not create rights in the litigants. However, such rights may arise otherwise, and here the delay was inordinate. Also see
State ex rel Richard v. Calabrese
(1993), 66 Ohio St. 3d 103 applying the same principle in a mandamus case.
State, ex rel. Pressley, v. Industrial Commission
(1967), 11 Ohio St. 2d 141 -- From the syllabus: "(1) Where a public officer or agency is under a clear legal duty to perform an act, and where there is no plain and adequate remedy in the ordinary course of the law, an action in mandamus will lie originally in the Supreme Court or the Court of Appeals. * * * (8) Mandamus will not lie to enforce a private right against a private person. (9) Mandamus will lie to permit a private individual to compel a public officer to perform an official act, where such officer is under a clear legal duty to do so, and where the relator has an interest, such as that of a taxpayer, or he is being denied a private right or benefit by reason of such public official's failure to take action to perform that act he is under a clear legal duty to perform." See balance of syllabus and opinion for discussion of statutory mandamus versus mandamus actions in appellate courts granted original jurisdiction under the Ohio Constitution.
State, ex rel. Williams, v. Brown
(1977), 52 Ohio St. 2d 13, 15 -- "Mandamus and prohibition are extraordinary remedies, to be issued with great caution and discretion and only when the way is clear."
State ex rel. Cody v. Ohio Supreme Court Board of Commissioners on Grievances and Discipline
(1997), 118 Ohio App. 3d 528 -- Mandamus does not lie in the court of appeals with respect to the work of an organization adjunct to a court of superior jurisdiction.
State ex rel. Pierce v. Dowler
(1993), 89 Ohio App. 3d 670 -- Proper venue for a mandamus action is the county where the public official from whom records have been requested exercises his functions, in this case the Identification Chief at BCI in London. Mandamus brought in the Tenth District Court of Appeals ordered transferred to the Twelfth District, which includes Madison County.
State ex rel Lindenschmidt v. Butler County Commissioners
(1995), 72 Ohio St. 3d 464 -- It is within the discretion of a court of appeals to allow an answer to be filed to a mandamus action after the prescribed 28 days have passed. Civil Rule 6(B)(2) applied.
State ex rel Papp v. Norton
(1993), 66 Ohio St. 3d 162 -- Party to a divorce action sought a writ of mandamus compelling the judge to rule on motions. Judge did not respond to alternative writ of mandamus previously issued, leading to issuance of peremptory writ.
State ex rel. Hughes v. Celeste
(1993), 67 Ohio St. 3d 429 -- Where the effect of the response to a peremptory writ of mandamus in effect determines the action, the grant of the peremptory writ must be appealed within thirty days.
State, ex rel. Celebrezze, v. Ohio Fifth District Court of Appeals
(1983), 5 Ohio St. 3d 1 -- In view of extraordinary delay, contempt may be used to force parties to carry out the mandate of the Ohio Supreme Court with regard to the fluoridation of Canton's drinking water.
State ex rel. Davis v. Cleary
(1992), 77 Ohio App. 3d 494 -- Intervening decisions of superior courts give rise to an exception to the law of the case doctrine, permitting lower courts to disregard the mandate of a superior court when a case has been remanded. In such circumstances appeal and not mandamus is the remedy.
State ex rel. Tran v. Christian
(1996), 108 Ohio App. 3d 578 -- Ohio court may not issue a writ of mandamus directed to the action of a federal officer or agency.
State ex rel. Wright v. Ohio Adult Parole Authority
(1996), 75 Ohio St. 3d 82 -- Paragraph one of the syllabus: "Civ. R. 54(B) applies in determining the appealability to the Supreme Court of orders in original actions, such as mandamus, entered by a Court of Appeals."
State ex rel. Whiteside v. Fais
91 Ohio St. 3d 463,
-- Mandamus properly dismissed after respondent judge had taken the action sought in the petition. No error in refusal to convert action to one in prohibition. No error in refusal to grant motion to proceed in forma pauperis since defendant failed to comply with local court rule concerning supporting affidavit.
State v. Whitmore
, Hamilton App. No. 2003 CA 5,
, ¶ 5 -- "A direct appeal is not an appropriate mechanism for determining whether the trial court properly determined that the transcript is complete. Such a determination would require fact finding, which can only be accomplished in an original action for mandamus. While App. R. 9(E) might have some application were an appeal from the judgment of conviction pending in this court, such is not the case..."
State ex rel. Carnail v. McCormick
, 126 Ohio St. 3d 124,
– Mandamus lies to compel trial court judge to conduct a new sentencing hearing to make postrelease control a part of a life-rape sentence.
State ex rel. Culgan v. Medina County Court of Common Pleas
, 119 Ohio St. 3d 535,
– Judgment entry did not set forth the plea or the verdict or the court findings on which convictions were based as required by Crim. R. 32(C). Trial court denied motion for resentencing. Court of appeals denied writs of mandamus and procedendo. Reversed. Writs issued.
State v. Staffrey v. D’Apolito
, 188 Ohio App. 3d 56,
– Defendant convicted in 1996 filed a motion to withdraw his guilty plea and asking for resentencing. Basis was
State v. Baker
, as the judgment entry did not include the manner of conviction. When the trial court failed to rule after ten months relief was sought in mandamus and procedendo. ¶20: If a court believes it lacks jurisdiction to grant a motion, a litigant is entitled to the courtesy of an entry to that effect, so relief may be sought on appeal. ¶23: If a motion seeks a greater remedy than can be afforded, it does not bar providing what relief is appropriate. ¶26: The respondent’s claim no remedy was due makes it unnecessary to weigh whether ten months was an unreasonable delay. Writ granted in part. Procedure now nullified by
State v. Lester
, 130 Ohio St. 3d 303,
State ex rel Badgett v. Mullen
, 177 Ohio App. 3d 27,
– Taxpayer has standing to bring mandamus action to compel provision of adequate facilities for the Marietta Municipal Court. Writ granted. Previously an ordinance adopted by referendum had blocked establishing new facilities.
State ex rel. Potts v. Commission on Continuing Legal Education
, 93 Ohio St. 3d 452,
-- Late provision of codes by the ABA led to initial lack of credit for CLE courses. CCLE subsequently denied carry-over credit for these hours. Writ of mandamus granted against the CCLE. Sanctions for failure to file a timely report had not included denial of carry-over credit.
State, ex rel. Dillard, v. Duncan
(1976), 45 Ohio St. 2d 134 -- Mandamus lies to compel court to furnish indigents appealing their conviction a transcript or reasonable alternative record or proceedings. Also see
State, ex rel. Seigler, v. Rone
(1975), 42 Ohio St. 2d 361;
State, ex rel. Wright, v. Cohen
(1962), 174 Ohio St. 47. Compare
State, ex rel. Clark, v. Marshall
(1980), 63 Ohio St. 2d 107 -- No right to free transcript if no appeal is pending or leave for delayed appeal has not been granted.
State, ex rel. Knight, v. Tyack
(1982), 5 Ohio App. 3d 136 -- Defers decision to Federal District Court whether a free transcript must be furnished in order for defendant to pursue habeas action there.
State, ex rel. Turpin, v. Court of Common Pleas
(1966), 8 Ohio St. 2d 116 -- Writ of mandamus issued to compel court to proceed on post-conviction petition pending for twelve months.
State, ex rel. Ferrell, v. Clark
(1984), 13 Ohio St. 3d 3 -- Mandamus lies to compel judge to issue findings of fact and conclusions of law in a post-conviction case. Also see
State, ex rel. Brown, v. Court
(1986), 23 Ohio St. 3d 46.
State ex rel. Botkins v. Laws
(1994), 69 Ohio St. 3d 383 -- Writ of mandamus issued to compel county to pay expenses of village solicitor who prosecuted cases in the county wide municipal court, however, the writ does not apply to future expenses and the county is not obligated to pay the entire amount billed if it is not "reasonable."
State ex rel. Smith v. Tate
(1991), 77 Ohio App. 3d 228 -- Once defendant's guilty plea had been stricken, he was entitled to be released from prison and returned to county where prosecution was pending. Mandamus lies to enforce this right.
State v. Berger
(1984), 17 Ohio App. 3d 8 -- Mandamus lies to compel trial judge or jailer to give credit for time already served.
State, ex rel. Britt v. Board of Franklin County Commissioners
(1985), 18 Ohio St. 3d 5 -- A court of common pleas possesses inherent authority to require funding for its services at a level that is both reasonable and necessary to the administration of the judicial process. Mandamus lies to compel county commissioners to provide only such amount as is both reasonable and necessary.
State ex rel. Scruggs v. Sadler
, 102 Ohio St. 3d 160,
-- Mandamus properly dismissed as moot following proffer of sought documents as an attachment to judge's motion for summary judgment. Mandamus sought compliance with Crim. R. 41(D), not
State ex rel. Carr v. Inderlied
(2000), 137 Ohio App. 3d 50 -- Inmate sued sentencing judge who imposed costs, and prison employee who made deduction from his account. Mandamus action dismissed. (1) As to the judge, the inmate had an adequate remedy at law in appeal from costs order. (2) As to the employee, remedy was an action pursuant to
in the Court of Claims.
State ex rel. Gadsen v. Lioi
93 Ohio St. 3d 574,
-- Mandamus action properly dismissed where inmate challenged outcome of probation revocation proceedings. Motion for delayed appeal (previously denied) or motion to vacate judgment provided adequate remedies at law.
State ex rel. Chavis v. Griffin
(2001), 91 Ohio St. 3d 50 -- Motion to withdraw guilty plea was initially assigned to a judge other than the one who presided at trial and during a prior postconviction action, but was transferred to the original judge in accordance with court's single assignment system. Mandamus does not lie to compel interim judge to decide motions filed before transfer.
State ex rel Carroll v. Corrigan
91 Ohio St. 3d 331,
-- Mandamus does not lie to compel issuance of findings of fact and conclusions of law in a successive postconviction action. Also see
Stewart v. Corrigan
, 97 Ohio St. 3d 80,
State ex rel. Scruggs v. Sadler
, 97 Ohio St. 3d 78,
-- Civil Rule 54(B) applies to appeals in mandamus actions. Since not all claims were resolved, and the trial court did not expressly determine that there was no just reason for delay in putting on a partial judgment, there was no final appealable order.
State ex rel. Atkins v. Hoover
, 97 Ohio St. 3d 76,
, ¶7 -- "...(P)rocendendo rather than mandamus is the more appropriate means to remedy an inferior court's refusal or failure to timely dispose of a pending action."
State ex rel Strothers v. Turner
(1997), 79 Ohio St. 3d 272 -- TV story maintained juvenile court clerk submitted false expense reports. Following an investigation, the prosecutor determined there was no probable cause. Citizen attempted to file complaint, and brought mandamus action after he was refused. Mandamus will not issue to compel a vain act. Summary judgment properly granted.
State, ex rel. Kaldor, v. Court
(1984), 9 Ohio St. 3d 114 -- Mandamus does not lie to compel the court to conduct an evidentiary hearing in a post-conviction action as appeal provides an adequate remedy in the ordinary course of law.
State, ex rel. McMinn, v. Ohio Public Defender
(1985), 26 Ohio App. 3d 16 -- Mandamus does not lie to compel the Ohio Public Defender to provide representation in a post conviction action where, pursuant to
, the public defender has determined that the case lacks arguable merit.
State ex rel. Peeples v. Wilford
(1995), 72 Ohio St. 3d 407 -- Mandamus does not lie to compel appellate counsel to file a postconviction petition.
State, ex rel. Smith, v. McGettrick
(1984), 12 Ohio St. 3d 54 -- Where only six weeks have elapsed since the filing of a post-conviction action, mandamus will not issue to force the prosecutor and court to proceed on the petition.
State, ex rel. Manning, v. Montgomery
(1988), 39 Ohio St. 3d 140 -- Mandamus does not lie to force the prosecutor to respond to a post-conviction petition as petitioner may ask to the trial court to rule on the petition even in the absence of a response.
Hattie v. Anderson
(1994), 68 Ohio St. 3d 232 -- Inmate had been approved for release on parole, but this was rescinded when he wrote to his parole office questioning some of the conditions. (1) Habeas corpus does not lie in these circumstances since the authority of the sentencing court was not challenged. (2) Mandamus does provide a remedy. (3) A declaratory judgment action is the proper remedy to challenge terms of release.
State ex rel. Earl
(1999), 85 Ohio St. 3d 370 -- Declaratory judgment, not mandamus, is the proper means for seeking correction of a prison record with respect to calculation of good time credit for purposes of parole eligibility.
State ex rel. Hattie v. Goldheart
(1994), 69 Ohio St. 3d 123 -- Mandamus does not lie to compel correction of alleged errors on APA risk assessment score sheet.
State ex rel Jividen v. Toledo Police Department
(1996), 112 Ohio App. 3d 458 -- Replevin, not mandamus, is the proper means for seeking the return of property held by a police department.
State, ex rel. Miller, v. Gillie
(1986), 24 Ohio App. 3d 121 -- Writ of mandamus will not issue to compel trial judge to excuse jurors expressing scruples against the death penalty when he has yet to act in the manner complained of, making the application premature.
State, ex rel Boston Heights, v. Petsche
(1985), 27 Ohio App. 3d 106 -- A village cannot create a mayor's court by local ordinance, nor may it prevail in a mandamus action seeking to force mayor to establish an mayor's court.
State, ex rel. Bowling, v. Court of Common Pleas
(1970), 24 Ohio St. 2d 158 -- Proper remedy when prisoner has not been brought to trial within the prescribed time is a motion to dismiss and not a mandamus action.
State, ex rel. Zoller, v. Talbert
(1980), 62 Ohio St. 2d 329 -- Appeal and not mandamus is prosecutor's remedy when judge refuses to impose mandatory days of incarceration upon conviction of OMVI. Also see
State, ex rel. Cleveland, v. Calandra
(1980), 62 Ohio St. 2d 121;
State, ex rel. Leis v. Outcalt
(1980), 62 Ohio St. 2d 331.
State, ex rel. Dix, v. Angelotta
(1985), 18 Ohio St. 3d 115 -- Mandamus is not available for pretrial review of ruling on motion for discharge on speedy trial grounds. Also see
State, ex rel. Woodbury, v. Spitler
(1974), 40 Ohio St. 2d 1;
State, ex rel. Racine, v. Dull
(1975), 44 Ohio St. 2d 72.
State, ex rel. Leis, v. Gusweiler
(1981), 65 Ohio St. 2d 60 -- Jeopardy attaches when a no contest plea is accepted. Court found defendant guilty of attempt instead of rape. Prosecutor not entitled to a writ of mandamus to compel judge to find defendant guilty of principal offense.
State, ex rel. Sawyer, v. O'Connor
(1978), 54 Ohio St. 2d 380 -- Mandamus does not afford a prosecutor a remedy where the outcome of the hearing on a no contest plea is allegedly erroneous. Since jeopardy attaches when the court accepts the plea, granting the writ would be a vain act, as the defendant could not subsequently be found guilty. Also see
State, ex rel. Leis, v. Gusweiler
(1981), 65 Ohio St. 2d 58.
State, ex rel. Murr, v. Meyer
(1987), 34 Ohio St. 3d 46 -- Mandamus does not lie to compel prosecutor to prosecute witness for falsification on complaint filed by the person the witness testified against.
Speakman v. Department of Rehabilitation and Correction
(1987), 36 Ohio App. 3d 36 -- Headnote: "A writ of mandamus will not issue to compel the Ohio Department of Rehabilitation and Correction to 'speedily' hold a parole revocation hearing in Ohio for an Ohio parolee who is being incarcerated in another state pursuant to a conviction for a new offense in that state."
State, ex rel. Thompson, v. Clark
(1982), 7 Ohio App. 3d 191 -- Mandamus does not lie to control the exercise of discretion by the Adult Parole Authority. It may lie where the where the parole board has failed to perform an act it is legally required to perform. Also see
Swiss v. Ohio Pardon and Parole Commission
(1963), 117 Ohio App. 141, 23 Ohio Ops. 2d 304;
State, ex rel. Blake, v. Shoemaker
(1983), 4 Ohio St. 3d 42.
State, ex rel. Ney, v. Niehaus
(1987), 33 Ohio St. 3d 118 -- Mandamus does not lie to compel a judge to grant immunity upon written request of the prosecutor.
gives the judge discretion to determine that immunity would not further the administration of justice.
State, ex rel. Leis, v. Outcalt
(1982), 1 Ohio St. 3d 147 -- Mandamus does lie to compel a judge to set aside an grant of immunity at the request of the defense and over the objection of the prosecutor.
David L. Strait
Copyright © Franklin County Public Defender and David L. Strait, 2015
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