State ex rel. Walker v. DeWeese

Nov 15, 2010
10CA85
Versions:2010-Ohio-5544

Relator

-vs-

Respondent

O P I N I O N

APPEARANCES:

For Relator

GARY D. WALKER
1001 Olivesburg Road
Mansfield, Ohio 44901

For Respondent

KIRSTEN PSCHOLKA-GARTNER
Assistant Richland County Prosecutor
38 South Park, Second Floor
Mansfield, Ohio 44902

Edwards, P.J.

{¶1} Relator, Gary D. Walker, has filed a Complaint for Writ of Mandamus requesting this Court issue a writ of mandamus compelling Respondent, Judge James Deweese, to issue an amended sentencing entry which addressed all forty-five counts against Relator. The trial court‘s initial sentencing entry did not address the odd numbered counts of the indictment because they were determined to be allied offenses with the even numbered offenses. The instant complaint was filed on July 2, 2010. The trial court issued an amended sentencing entry addressing all forty-five counts on September 7, 2010.

{¶2} Respondent has filed a Motion to Dismiss suggesting the complaint should be dismissed as moot because the trial court has now ruled on the motion.

{¶3} The Supreme Court has held, “Neither procedendo nor mandamus will compel the performance of a duty that has already been performed. State ex rel. Grove v. Nadel (1998), 84 Ohio St.3d 252, 253, 703 N.E.2d 304, 305.” State ex rel. Kreps v. Christiansen (2000), 88 Ohio St.3d 313, 318, 725 N.E.2d 663, 668.

{¶4} Because the requested relief has already been obtained, we find the complaint for writ of mandamus is moot and grant the motion to dismiss.

{¶5} MOTION TO DISMISS GRANTED.

{¶6} COSTS WAIVED.

By: Edwards, P.J.

Gwin, J. and

Farmer, J. concur

s/Julie A. Edwards_______________

s/W. Scott Gwin_________________

s/Sheila G. Farmer______________

JUDGES

JAE/as1029

Relator

-vs-

JUDGMENT ENTRY

Respondent

For the reasons stated in our accompanying Memorandum-Opinion on file, the complaint is dismissed. Costs waived.

s/Julie A. Edwards__________________

s/W. Scott Gwin____________________

s/Sheila G. Farmer__________________

JUDGES