State ex rel. Murr v. Meyer

Full title: THE STATE, EX REL. MURR, APPELLANT, v. MEYER, APPELLEE

Court: Supreme Court of Ohio

Date published: Dec 16, 1987

34 Ohio St. 3d 46 (Ohio 1987)

516 N.E.2d 234

Opinion

No. 87-454

Decided December 16, 1987.

Mandamus — To compel prosecution of a witness for falsification — Failure to prosecute not an abuse of discretion, when — Petitioner filed complaint against witness charging falsification and that complaint was dismissed for lack of probable cause and on appeal, court of appeals dismissed the appeal.

APPEAL from the Court of Appeals for Ottawa County.

Appellant, Jeffrey A. Murr, was convicted of vandalism and possessing criminal tools in the Court of Common Pleas of Ottawa County, and sentenced to a term of imprisonment. He was incarcerated at the commencement of this action.

Thereafter, he brought this action for a writ of mandamus in the Court of Appeals for Ottawa County seeking to compel appellee, Douglas O. Meyer, the Ottawa County Prosecuting Attorney, to prosecute a witness for falsification (R.C. 2921.13) who testified against appellant in his criminal trial. The court of appeals dismissed the complaint stating that:

"The decision to prosecute is clearly discretionary. Accordingly, mandamus will not lie under the circumstances of this case."

The cause is now before this court on an appeal as of right.

Jeffrey A. Murr, pro se. Douglas O. Meyer, prosecuting attorney, for appellee.

Per Curiam.

Appellant contends that appellee has a clear legal duty to prosecute the witness for falsification and that failure to do so is an abuse of discretion. We disagree.

Appellant states that he filed a criminal complaint against the witness charging falsification, that the complaint was dismissed for lack of probable cause, and that on appeal, the court of appeals dismissed the appeal. Appellant contends (1) that appellee has a clear legal duty to prosecute a complaint that two courts have found to lack probable cause and (2) that failure to do so is an abuse of discretion. Doubtless, a prosecuting attorney's discretion concerning prosecution is subject to some limits. See Peek v. Mitchell (C.A. 6, 1970), 419 F.2d 575. This court has not ruled precisely on those limits. However, to refuse to prosecute in this case is within any conceivable limits and is not an abuse of discretion.

Appellant has not proved a clear legal duty on the part of appellee or an abuse of discretion. Accordingly, the judgment of the court of appeals is affirmed.

Judgment affirmed.

MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.