[Cite as State ex rel. Duncan v. DeWeese, 2012-Ohio-1800.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, ex rel. ROY SHANE JUDGES:
DUNCAN Hon. W. Scott Gwin, P. J.
Hon. Sheila G. Farmer, J.
Relator Hon. John W. Wise, J.
-vs- Case No. 11 CA 102
JUDGE JAMES DeWEESE
OPINION
Respondent
CHARACTER OF PROCEEDING: Writ of Mandamus
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: April 23, 2012
APPEARANCES:
For Relator For Respondent
ROY SHANE DUNCAN, PRO SE JILL M. COCHRAN
N.C.C.I. ASSISTANT PROSECUTOR
Post Office Box 1812 38 South Park Street, 2nd Floor
Marion, Ohio 43301-1812 Mansfield, Ohio 44902
Richland County, Case No. 11 CA 102 2
Wise, J.
{¶1} Relator, Roy Duncan, has filed a Petition for Writ of Mandamus requesting
this Court to order Respondent to resentence Relator. Respondent has filed a Motion to
Dismiss for failure to state a claim upon which relief may be granted.
{¶2} Relator avers the trial court is required to issue a new sentencing entry
because the original order issued by the trial court was not a final, appealable order.
Relator raises two reasons in support of his claim. First, he argues the order was not
final because it did not contain a disposition of OVI specifications. Second, the order
did not contain a specific amount of restitution.
{¶3} For a writ of mandamus to issue, the relator must have a clear legal right
to the relief prayed for, the respondent must be under a clear legal duty to perform the
requested act, and relator must have no plain and adequate remedy in the ordinary
course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50,
451 N.E.2d 225.
{¶4} In the underlying case, the State suggests the OVI specifications were
dismissed by the trial court prior to trial. Relator in turn argues the dismissal was not
reduced to a judgment entry. It is undisputed that the jury did not receive the issue of
the specifications to consider. It is also undisputed that Relator was not convicted of the
specifications.
{¶5} The Supreme Court has explained, “[O]ur holding in State v. Baker, 119
Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, syllabus, ‘requires 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
Richland County, Case No. 11 CA 102 3
other ways, such as dismissals, nolled counts, or not guilty findings.’ (Emphasis
added.)” State ex rel. Davis v. Cuyahoga Cty. Court of Common Pleas 127 Ohio St.3d
29, 30, 936 N.E.2d 41 (Ohio,2010).
{¶6} Because the sentencing order already appealed by Relator contains all of
the required elements pursuant to Crim.R. 32 and provides a full resolution of all counts
for which there were convictions, we find the order was a final, appealable order. For
this reason, Relator has already obtained the relief he seeks, i.e. a final, appealable
order, making the request for writ of mandamus moot.
{¶7} Relator also argues the order entered by the trial court is not final and
appealable because the issue of restitution was not finalized. In an effort to resolve this
issue, Relator filed a motion in the trial court relative to restitution. In response, the trial
court issued an order dated October 13, 2011 wherein the trial court ruled,
Regarding restitution, the [sentencing] entry orders payment “for
medical expenses to Kathy Ward, Richard Miller or providers.” The state
has offered no evidence at sentencing or since sentencing that the victims
see payment of any such restitution. A trial court has no statutory
authority to reconsider or modify the amount of restitution after the
defendant’s sentence is journalized. It is therefore ordered:
1. The defendant has no monetary restitution in this case.
{¶8} We find the trial court’s order eliminating restitution makes Relator’s
argument moot. Restitution is no longer an issue. For this reason, the order being
appealed was a final, appealable order relative to all other portions of Relator’s
sentence.
Richland County, Case No. 11 CA 102 4
{¶9} Relator has failed to establish the necessary elements to warrant the
issuance of the extraordinary writ of mandamus. For this reason, the cause of action is
dismissed for failure to state a claim upon which relief may be granted.
By: Wise, J.
Gwin, P. J., and
Farmer, J. concur.
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JUDGES
JWW/as/d 0309
Richland County, Case No. 11 CA 102 5
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, ex rel., :
ROY SHANE DUNCAN :
:
Relator :
:
-vs- : JUDGMENT ENTRY
:
JUDGE JAMES DeWEESE :
:
Respondent : Case No. 11 CA 102
For the reasons stated in our accompanying Memorandum-Opinion, the writ of
mandamus is found to be moot and is dismissed for failure to state a claim upon which
relief may be granted. Costs to Relator.
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JUDGES