728 N.E.2d 1119 | Ohio Ct. App. | 1999
Appellant James E. Brooks, an inmate at the Chillicothe Correctional Institute, appeals the lower court's dismissal of his "Petition for Declaratory Judgment." The appellant assigns the following errors for our review:
1. "Judge Susan E. Boyer (Court), abuses her discretion in determining the Petition for Declaratory Judgment based on a review of 'its records' without considering documentation filed by Brooks."
2. "Judge Susan E. Boyer (Court), commits abuse of discretion at the probation revocation hearing to the prejudice of Brooks resulting in his loss of liberty and denial of minimum due process requirement as guaranteed by the
Fourteenth Amendment of the United States Constitution."3. "Brooks has a liberty interest in probation and at a revocation hearing there is minimum due process requirement necessary to show Brooks actually did violate a condition of his probation.
Fourteenth Amendment, United States Constitution."1
The assignments of error reveal that the appellant seeks to assert a post-conviction relief action disguised as a petition for declaratory relief. Because the appellant's action is not cognizable, we affirm the judgment of the Washington County Court of Common Pleas.
On August 17, 1993, the Washington County Adult Probation Department filed a complaint charging that the appellant violated his probation. The trial court held two probable cause hearings in connection with the alleged probation violation. At the second hearing, on November 8, 1993, the appellant pleaded *524 guilty to violating his probation and the court reinstated his prison sentence. After the trial court denied a motion to withdraw his guilty plea, the appellant commenced an appeal to this court.2 This court dismissed for failure prosecute the appeal. State v. Brooks (Oct. 26, 1994), 94 CA 15, unreported.
On July 13, 1998, more than four years after the court revoked his probation, the appellant filed a petition in common pleas court, styled as a "Petition for Declaratory Judgment" pursuant to R.C.
Following the trial court's entry of dismissal, the appellant commenced this appeal.
"Courts of record may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding is open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect. Such declaration has the effect of a final judgment or decree."
A declaratory judgment action is a civil action and provides a remedy in addition to other legal and equitable remedies available. See Arbor Health Care Co. v. Jackson (1987),
The appellant's declaratory relief petition sought a judgment that the revocation of his probation, which resulted in the reinstatement of his prison sentence, was invalid. The result of the probation revocation proceeding became final long ago when we dismissed the appellant's appeal for failure to prosecute. The appellant's attempt to revisit the revocation of his probation does not present a justiciable controversy. A litigant may not use a declaratory judgment action as a method of appellate review. Tootle v. Wood (1974),
"An action under declaratory judgments acts will not lie to determine whether rights theretofore adjudicated have been properly decided, nor will it lie to determine the propriety of judgments in prior actions between the same parties. An action for a declaratory judgment cannot be used as a subterfuge for, or for the veiled purpose of, relitigating questions as to which a former judgment is conclusive. In the absence of an allegation of fraud in the procurement of a prior adjudication, or without showing that an application was made to vacate the prior judgment within the period allowed by a statute of limitations, a party who acquiesced in the procurement of such judgment cannot procure a declaratory judgment which would in effect disregard the prior judgment as being void.* * *"
Id. at 578 (quoting 26 Corpus Juris Secundum 93-94, Declaratory Judgments, Section 23); see, also, Richard v. Jones (Mar. 3, 1994), Cuyahoga App. No. 64769, unreported; Wagner v. Krouse
(1983),
A declaratory judgment action is not part of the criminal appellate process. Carter, supra. "Neither [R.C.
The General Assembly amended the post-conviction relief statute by passing Am.Sub.S.B. No. 4, which became effective on September 21, 1995. R.C.
The judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HASBEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the appellant to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Kline, P.J. and Abele, J. Concur in Judgment Opinion:
________________________ William H. Harsha, Judge