[Cite as State ex rel. Jones v. Vercillo, 2015-Ohio-3991.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO, EX REL. : Hon. W. Scott Gwin, P.J.
DARIUS M. JONES : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
Relator :
:
-vs- : Case No. 15-COA-003
:
JUDGE DAMIAN J. VERCILLO :
: OPINION
Respondent
CHARACTER OF PROCEEDING: Writ of Mandamus
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: September 25, 2015
APPEARANCES:
For: Relator For: Respondent
DARIUS M. JONES JUDGE DAMIAN J. VERCILLO
P.O. BOX 8107 Ashland County Common Pleas Court
Mansfield, OH 44901 142 West Second Street
Ashland, OH 44805
Ashland County, Case No. 15-COA-003 2
Gwin, P.J.
{¶1} Relator, Darius M. Jones, has filed a Complaint for Writ of
Mandamus/Procedendo requesting this Court find Respondent lacked jurisdiction to
conduct a hearing nine months after having been served with a notice of availability
from Relator. Respondent has filed a motion to dismiss arguing Relator’s claim fails
because he had an adequate remedy at law. Relator in turn filed a motion for summary
judgment.
{¶2} To be entitled to the issuance of a writ of mandamus, the Relator must
demonstrate: (1) a clear legal right to the relief prayed for; (2) a clear legal duty on the
respondent's part to perform the act; and, (3) that there exists no plain and adequate
remedy in the ordinary course of law. State ex rel. Master v. Cleveland, 75 Ohio St.3d
23, 26-27, 1996 Ohio 228, 661 N.E.2d 180; State ex rel. Harris v. Rhodes (1978), 54
Ohio St.2d 41, 374 N.E.2d 641, citing State ex rel.National City Bank v. Bd of Education
(1977) 52 Ohio St.2d 81, 369 N.E.2d 1200.
{¶3} On August 15, 2013, while Relator was in prison, he filed a “notice of
availability.” Ohio Revised Code Section 2941.401 provides in relevant part, “When a
person has entered upon a term of imprisonment in a correctional institution of this
state, and when during the continuance of the term of imprisonment there is pending in
this state any untried indictment, information, or complaint against the prisoner, he shall
be brought to trial within one hundred eighty days after he causes to be delivered to the
prosecuting attorney and the appropriate court in which the matter is pending, written
notice of the place of his imprisonment and a request for a final disposition to be made
of the matter . . .”
Ashland County, Case No. 15-COA-003 3
{¶4} The essence of the complaint is that Respondent did not resolve the
cause pending below within 180 days of being served with Relator’s “notice of
availability.”
{¶5} Relator has not explained exactly what cause was pending in
Respondent’s court. R.C. 2941.401 requires a person to be tried on any “untried
indictment, information, or complaint” within 180 days of the notice. Relator describes
the pending action below as a “simple misdemeanor warrant” and “an alleged child
support warrant.” Complaint paragraphs 1 and 2. Respondent suggests there was no
pending criminal case but concedes there was a child support warrant in the juvenile
court. Answer paragraph 2.
{¶6} Even assuming arguendo R.C. 2941.401 is applicable to the underlying
case, the Supreme Court has held mandamus will not lie due to a violation of this code
section because an adequate remedy at law exists. In other words, because Relator
can challenge a violation of R.C. 2941.401 by filing a motion to dismiss on speedy trial
grounds, mandamus does not lie. The sole contention in the complaint before us is that
Respondent failed to resolve the warrant within 180 days in violation of R.C. 2941.401.
As noted above, a violation of R.C. 2941.401 does not lie in mandamus, the mandamus
action is dismissed for failure to state a claim upon which relief may be granted.
{¶7} Relator captioned his complaint as one in mandamus/procedendo.
Despite its caption, Relator has alleged no facts in support of a writ of procedendo.
{¶8} To be entitled to a writ of procedendo, “a relator must establish a clear
legal right to require the court to proceed, a clear legal duty on the part of the court to
proceed, and the lack of an adequate remedy in the ordinary course of law.” Miley,
Ashland County, Case No. 15-COA-003 4
supra, at 65, citing State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas
(1995), 72 Ohio St.3d 461, 462. The Supreme Court has noted, “The writ of procedendo
is merely an order from a court of superior jurisdiction to one of inferior jurisdiction to
proceed to judgment. It does not in any case attempt to control the inferior court as to
what that judgment should be.” State ex rel. Davey v. Owen, 133 Ohio St. 96,106, 12
N.E.2d 144, 149 (1937).
{¶9} Because none of the facts alleged in the complaint have any relation to a
writ of procedendo, the complaint for writ of procedendo is dismissed for failure to state
a claim upon which relief may be granted.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur