THE STATE EX REL. WILSON, APPELLANT, v. SUNDERLAND, JUDGE, APPELLEE.
No. 99-1720
Supreme Court of Ohio
January 19, 2000
87 Ohio St.3d 548 | 2000-Ohio-479
APPEAL from the Court of Appeals for Montgomery County, No. 17715.
{¶ 1} Appellant, Lawrence E. Wilson, was convicted of rape and sentenced to prison. On appeal, the court of appeals affirmed the judgment. State v. Wilson (Aug. 7, 1998), Montgomery App. Nos. 16728 and 16752, unreported, 1998 WL 639100. In October 1998, the trial court denied Wilson’s delayed motion for a new trial. In November 1998, Wilson filed his notice of appeal from this denial. In December 1998, Wilson filed a motion in the trial court for the preparation of a transcript at state expense in conjunction with his appeal from the denial of his delayed motion for a new trial.
{¶ 2} On March 30, 1999, Wilson filed a complaint for a writ of mandamus to compel appellee, Montgomery County Common Pleas Court Judge David G. Sunderland, to grant his December 1998 motion for a transcript. The next day, March 31, 1999, the court of appeals affirmed the trial court’s judgment denying Wilson’s delayed motion for a new trial. State v. Wilson (Mar. 31, 1999), Montgomery App. No. 17515, unreported, 1999 WL 173551. On April 7, 1999, Judge Sunderland denied Wilson’s motion for a transcript because his appeal was no longer pending. Judge Sunderland filed a motion to dismiss, or, in the alternative, for summary judgment. The court of appeals granted the motion and denied the writ.
{¶ 3} This cause is now before the court upon an appeal as of right.
Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and Lisa K. North, Assistant Prosecuting Attorney, for appellee.
Per Curiam.
{¶ 4} Wilson asserts that the court of appeals erred in denying the writ. For the following reasons, Wilson’s assertions lack merit.
{¶ 5} To the extent that Wilson requested that Judge Sunderland rule on his motion for a free transcript, his claim was rendered moot when Judge Sunderland subsequently denied the motion. Mandamus will not issue to compel an act that has already been performed. State ex rel. Jones v. O’Connor (1999), 84 Ohio St.3d 426, 426, 704 N.E.2d 1223, 1224.
{¶ 6} In addition, although Wilson claimed he needed a copy of the transcript to help him prepare an appeal in the court of appeals, that appeal was no longer pending when the court of appeals denied the writ. State ex rel. Call v. Zimmers (1999), 85 Ohio St.3d 367, 368, 708 N.E.2d 711, 712; State ex rel. Murr v. Thierry (1987), 34 Ohio St.3d 45, 45, 517 N.E.2d 226, 226-227; see, also, State ex rel. Newton v. Court of Claims (1995), 73 Ohio St.3d 553, 557, 653 N.E.2d 366, 370, quoting Oregon v. Dansack (1993), 68 Ohio St.3d 1, 4, 623 N.E.2d 20, 22 (“in mandamus actions ‘a court is not limited to considering facts and circumstances at the time a proceeding is instituted, but should consider the facts and conditions at the time it determines to issue a peremptory writ’ ”).
{¶ 7} Finally, Wilson had an adequate remedy in the ordinary course of law to obtain the requested transcript, i.e., a motion in the court of appeals in his appeal. State ex rel. Jones v. Montgomery Cty. Court of Common Pleas (1996), 75 Ohio St.3d 642, 643, 665 N.E.2d 673, 674.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.