Opinion
No. 09 BE 22.
Dated: December 10, 2009.
Petition for Writ of Procedendo.
Petition for Writ of Procedendo Denied.
Demitrieus Howard, Pro Se, #261-820, for Petitioner.
Attorney Christopher Berhalter, Prosecuting Attorney, for Respondent.
Before: Hon. Joseph J. Vukovich Hon. Gene Donofrio Hon. Mary DeGenaro.
OPINION AND JUDGMENT ENTRY
{¶ 1} Petitioner Demitrieus Howard was convicted of aggravated murder in Belmont County Case Number 92CR108. In July 1992, he was sentenced to twenty years to life plus three years on a firearm specification.
{¶ 2} On March 3, 2008, petitioner filed in the trial court a motion to correct the record. He explained that his prison documentation always showed that his first eligible parole hearing date would be in May of 2009 until he was notified that the date had been changed to September 2009. This was said to be due to an institutional mistake regarding the loss of good time credit, which he stated that he did not even receive.
{¶ 3} When over a year had passed and the trial court had not acted to rule on his motion, petitioner filed the within petition for a writ of procedendo on July 16, 2009. He asks that we issue an order compelling the trial court to proceed to rule on the March 3, 2008 motion.
{¶ 4} However, less than two weeks after petitioner filed his petition in this court, the trial court held a hearing on his motion. The court then appointed counsel to appellant. The court also ordered counsel to prepare a proposed record correction. A further hearing was then scheduled for September 21, 2009. Because the trial court was proceeding on the motion as requested by appellant, this court held the original action in abeyance.
{¶ 5} Thereafter, the trial court apparently continued the September hearing. Whether appellant objected to such continuance is unknown. Appellant did not seek to lift our abeyance order on grounds of delay by the trial court. On November 16, 2009, the trial court released an entry dismissing appellant's motion to correct the record to reflect a sooner parole eligibility date. The court found that appellant's first parole date had already passed and thus his motion was moot. As the trial court has issued a ruling on appellant's motion, we sua sponte lift our abeyance order and deny appellant's request for a writ on the following grounds.
{¶ 6} Where a court has refused to render judgment or has unnecessarily delayed proceeding to judgment, a writ of procedendo can be an appropriate remedy. State ex rel. Betleski, 104 Ohio St.3d 345, 2004-Ohio-6567, ¶ 13, 16. In reviewing whether the writ is warranted, we are not limited to considering the circumstances at the time the petition was filed. State ex rel. Howard v. Skow, 102 Ohio St.3d 423, 2004-Ohio-3652, ¶ 9, citing State ex rel. Wilson v. Sunderland (2000), 87 Ohio St.3d 548, 549. Rather, we can consider the circumstances existing at the time the petition is considered. Id.
{¶ 7} The trial court's performance of the act requested can thus be utilized to render a petition moot. Id., citing State ex rel. Grove v. Nadel (1998), 84 Ohio St.3d 252, 253. Where a petition seeks to compel a trial court to rule on a motion, the petition becomes moot when the trial court either grants or denies said motion. Id. at ¶ 3, 9 (where the trial court had denied the petitioner's motion). This is because procedendo cannot be used to compel the performance of a duty already performed. State ex rel. Kreps v. Christiansen (2000), 88 Ohio St.3d 313, 318.
{¶ 8} Because the trial court has ruled on the petitioner's motion, this action for a writ of procedendo is moot. In accordance, the request for extraordinary relief is denied.
{¶ 9} Final order. Clerk to serve notice as provided by the Civil Rules.
Vukovich, P.J., Donofrio, J., DeGenaro, J., concurs.