State ex Rel. Peterson v. Sutula

Full title: State of Ohio ex rel., Damien L. Peterson, Relator, v. Judge John D…

Court: Court of Appeals of Ohio, Eighth District, Cuyahoga County

Date published: Sep 14, 2011

2011 Ohio 4646 (Ohio Ct. App. 2011)

Opinion

No. 96744.

Release Date: September 14, 2011.

Writ Denied, Writ of Procedendo, Motion No. 444842, Order No. 447196.

Damien L. Peterson, Inmate No. 503-884, Marion Correctional Institution, Pro Se, for Relator.

William D. Mason, Cuyahoga County Prosecutor, By: James E. Moss, Assistant County Prosecutor, Attorneys for Respondent.

JOURNAL ENTRY AND OPINION

MELODY J. STEWART, P.J.

{¶ 1} Relator, Damien L. Peterson, requests that this court issue a writ of procedendo compelling respondent judge to issue a ruling on the motion to vacate void sentencing journal entry/judgement of conviction filed by Peterson in State v. Peterson, Cuyahoga County Court of Common Pleas Case No. CR-388072 on November 12, 2010.

{¶ 2} Respondent has filed a motion for summary judgment attached to which is a copy of the journal entry received for filing by the clerk on May 25, 2011 denying the motion to vacate void sentencing journal entry/judgement of conviction. Relator has not opposed the motion. Respondent argues that this action in procedendo is, therefore, moot. We agree.

{¶ 3} We also note that Peterson has not complied with the requirement of R.C. 2969.25 that he provide an affidavit describing "each civil action or appeal of a civil action that the inmate has filed in the previous five years in any state or federal court." R.C. 2969.25(A). Failure to comply with this provision provides a basis for dismissal of an action in procedendo. State ex rel. Huffman v. Ambrose, 8th Dist. No. 95546, 2010-Ohio-5376. Peterson also failed to support his complaint with a statement setting forth the balance in his inmate account as certified by the institutional cashier. See R.C. 2969.25(C). "This also is sufficient reason to deny the writ, deny indigency status, and assess costs against the relator." Id. ¶ 9.

{¶ 4} Accordingly, respondent's motion for summary judgment is granted. Relator to pay costs. The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal. Civ. R. 58(B).

Writ denied.

FRANK D. CELEBREZZE, JR., J., and SEAN C. GALLAGHER, J., CONCUR.