State ex rel. Rose v. McGintyState ex rel. Rose v. McGinty
{¶ 1} We affirm the judgment of the court of appeals denying a writ of procedendo to compel appellee, Cuyahoga County Court of Common Pleas Judge Timothy J. McGinty, to enter a new judgment of conviction and sentence for appellant, Floyd Rose, in State v. Rose, Cuyahoga Cty. C.P. case No. CR-07-492008-B, that complies with the requirements of
{¶ 2} “A writ of procedendo will not issue to compel the performance of a duty that has already been performed.” State ex rel. Sevayega v. McMonagle, 122 Ohio St.3d 54, 2009-Ohio-2367, 907 N.E.2d 1180, ¶ 1; State ex rel. Rose v. McGinty, 123 Ohio St.3d 86, 2009-Ohio-4050, 914 N.E.2d 366, ¶ 2. We have construed
{¶ 3} As we recently held, our holding in Baker requires only “‘a full resolution of those counts for which there were convictions. It does not require a reiteration of those counts and specifications for which there were no convictions, but were resolved in other ways, such as dismissals, nolled counts, or not guilty findings.‘” (Emphasis sic.) State ex rel. Davis v. Cuyahoga Cty. Court of Common Pleas, 127 Ohio St.3d 29, 2010-Ohio-4728, 936 N.E.2d 41, ¶ 2, quoting State ex rel. Davis v. Cuyahoga Cty. Court of Common Pleas, Cuyahoga App. No. 93814, 2010-Ohio-1066, 2010 WL 972808, ¶ 8. Therefore, notwithstanding Rose‘s argument to the contrary, the sentencing entry did not need to include the dispositions of the counts that Rose was originally charged with but that were not the basis for his convictions and sentence. Those counts were nolled. See http://cpdocket.cp.cuyahogacounty.us for case No. CR-07-492008-B, Mar. 21, 2007 Docket Entry.
Judgment affirmed.
O‘Connor, C.J., and Pfeifer, Lundberg Stratton, O‘Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.