Opinion
No. 41290
Decided December 13, 1967.
Criminal procedure — Appeal — Indigent defendant — Bill of exceptions at state expense — Mandamus — Remedy not available, when.
IN MANDAMUS.
This is an action in mandamus originating in this court.
In this action, relator is seeking to compel respondent to furnish him his trial transcript and all original docket and journal entries for the purpose of an appeal. Respondent has demurred to the petition.
In his petition, relator alleges that he is serving two terms of life imprisonment for murder imposed upon him in 1959. He alleges that he is indigent and needs the record and transcript to pursue an appeal. Relator was represented by court-appointed counsel at his trial, but such counsel did not pursue an appeal on his behalf. Relator was convicted on May 25, 1959. On October 1, 1959, he filed his first motion to secure his records and for leave to proceed in forma pauperis. This was overruled. He renewed this motion in 1962, and it was again overruled. In early 1967, relator filed a motion for a delayed appeal in the Court of Appeals. This motion was overruled on April 12, 1967.
Mr. Robert Lowther, in propria persona. Mr. John T. Corrigan, prosecuting attorney, and Mr. Joseph F. Donahue, for respondent.
In support of his demurrer respondent argues that relator has no appeal pending or has no appeal as of right and, thus, is not entitled to a bill of exceptions at the expense of the state. In support of this it cites State, ex rel. Catlino, v. Clerk of Common Pleas Court of Cuyahoga County, 9 Ohio St.2d 101.
Mandamus is an extraordinary remedy and does not lie if there is an adequate remedy in the ordinary course of the law. State, ex rel. Pressley, v. Industrial Commission, 11 Ohio St.2d 141.
Ordinarily, to be entitled to a transcript of his original trial an accused must be within rule at the time such request is made or have had a motion for leave to appeal granted. State, ex. rel. Catlino, v. Clerk of Common Pleas Court of Cuyahoga County, supra.
However, in the second Catlino case (State v. Catlino, 10 Ohio St.2d 183) where it appeared that the indigent accused had promptly attempted to pursue an appeal from his conviction but because of lack of counsel was denied his appeal, this court, in a postconviction remedy proceeding, remanded the cause to the Court of Common Pleas with directions to appoint counsel and to grant a bill of exceptions so that relator could have a proper appeal from his conviction.
Relator, in the instant case, is out of rule so far as his appeal as of right is concerned and no motion for leave has been granted. Thus, there is no clear legal duty in any officer to furnish relator with a transcript.
It is apparent that if relator is entitled to any relief it is that pursued by the accused in State v. Catlino, 10 Ohio St.2d 183, and not by mandamus.
The demurrer to the petition is sustained and the writ is denied.
Writ denied.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.