dissenting.
{¶ 42} I dissent from the holding that when an inmate submits an application for DNA testing, a court has the discretion to initially decide that a DNA test will not be outcome determinative, thus obviating the prosecutor’s obligation to check for the existence and condition of biological material. This reading conflicts with mandatory language that “[i]f an eligible inmate submits an application for DNA testing under section 2953.73 of the Revised Code, the court shall require the prosecuting attorney to use reasonable diligence to determine whether biological material was collected * * * and whether the parent sample of that biological material still exists * * (Emphasis added.) R.C. 2953.75(A).
{¶ 43} R.C. 2953.72(A)(2) explains that “the process of conducting postconviction DNA testing * * * begins when the inmate submits an application under section 2953.73 of the Revised Code and the acknowledgment described in this section.” The key event therefore is a request made pursuant to the statute.
{¶ 44} Within the provisions for DNA testing, the General Assembly distinguished actions that happen immediately upon submission of an application from those that occur only after the submission is accepted by the court, and also from those that occur after the submission is accepted and DNA testing is to be performed. The unqualified phrase “If an eligible inmate submits an application for DNA testing” is used nine times in R.C. 2953.71 through 2953.83 and prefaces the need for immediate action on the part of the court, the inmate, or the *123prosecutor when the application is filed.1 Both sections that refer to the prosecutor’s duties begin with these words.2 In other places, however, the introductory language is qualified. One section calls for action when the test request is submitted and accepted by the court,3 while three others limit action until the court determines that DNA testing actually is to be performed.4 This is the only sequencing provided in R.C. 2953.71 through 2953.81.
{¶ 45} The holding of the majority opinion announces that the trial court has discretion to choose the order in which it exercises its statutory duties. Paragraph two of the syllabus states that a trial court “should exercise its discretion based upon the facts and circumstances presented in the case as to whether it will first determine whether the eligible inmate has demonstrated that the DNA testing would be outcome-determinative, or whether it should order the prosecuting attorney to prepare and file a DNA evidence report pursuant to R.C. 2953.75.” This discretion is judicially created and is conferred nowhere in the statute. It is improper to suggest that the court has discretion when the General Assembly has already demonstrated the ability to authorize discretion when it so desires.5
{¶ 46} The majority also views the issue of whether testing will be outcome determinative as one that trumps the state’s immediate duty to check for the existence and condition of any biological material that may contain DNA. However, the existence of the material itself may relate to whether “there is a strong probability that no reasonable factfinder would have found the inmate guilty.” R.C. 2953.71(L).
{¶ 47} I do not agree that the trial court has discretion to ignore mandatory language of R.C. 2953.75 and 2953.76, which set forth prosecuting attorneys’ duties. If the General Assembly had intended that the criteria of R.C. 2953.74(B) *124should be met before requiring the court to order the prosecutor to issue a report, it could have done so. Instead, R.C. 2953.75(A) states that “the court shall require the prosecuting attorney to use reasonable diligence to determine whether biological material was collected from the crime scene or victim of the offense.” (Emphasis added.) Use of the word “shall” does not allow for the court’s discretion. “Shall” is mandatory.
William D. Mason, Cuyahoga County Prosecuting Attorney, and Mary H. McGrath, Assistant Prosecuting Attorney, for appellant. David H. Bodiker, Ohio Public Defender, and James R. Foley, Assistant State Public Defender, for appellee.{¶ 48} While the majority decision reaches a result that may seem preferable, it is not what the statutes provide. I would answer no to the certified question; R.C. 2953.74 and 2953.75 are not to be read “sequentially.”
. R.C. 2953.73(D) begins, “If an eligible inmate submits an application for DNA testing under division (A) of this section, the court shall make the determination as to whether the application should be accepted or rejected.” (Emphasis added.)
. R.C. 2953.75 and 2953.76.
. “If an eligible inmate submits an application for DNA testing under section 2953.73 of the Revised Code and the court accepts the application * * *.” (Emphasis added.) R.C. 2953.74(E).
. “If an eligible inmate submits an application for DNA testing under section 2953.73 of the Revised Code and if the application is accepted and DNA testing is to be performed * * (Emphasis added.) R.C. 2953.77(A), 2953.78(A), and 2953.79(A).
. For example, R.C. 2953.74(A) states, “If an eligible inmate files an application for DNA testing and a prior inconclusive DNA test has been conducted regarding the same biological evidence that the inmate seeks to have tested, the court shall review the application and has the discretion, on a case-by-case basis, to either accept or reject the application.” (Emphasis added.)