Opinion
No. 94539.
RELEASED: May 17, 2010.
Writ of Procedendo Motion No. 430996 Order No. 433587.
WRIT DENIED.
William Whitman, pro se, Inmate No. A581-451, Richland Correctional Institution, for Relator.
William D. Mason, Cuyahoga County Prosecutor, By: James E. Moss, Assistant County Prosecutor, Attorneys for Respondent.
JOURNAL ENTRY AND OPINION
{¶ 1} Relator, William Whitman, requests that this court compel respondent judge to issue a ruling on his "motion to dismiss violation of 90 day fast and speedy trial" in the underlying case filed on November 6, 2009.
State v. Whitman, Cuyahoga County Court of Common Pleas Case No. CR-526494.
{¶ 2} Respondent has filed a motion for summary judgment attached to which is a copy of the journal entry memorializing the jury's verdict and imposing sentence. The journal entry was received for filing by the clerk on February 2, 2010. Relator has not opposed the motion for summary judgment. Respondent argues that this action in procedendo is, therefore, moot. We agree.
{¶ 3} "It is well settled that a motion not ruled upon is implicitly deemed denied." Respondent has issued a journal entry reflecting the jury's verdict and imposing sentence. As a consequence, Whitman's request for relief in procedendo is moot. We also note that Whitman has appealed that judgment and his appeal is pending.
Mosby v. Sanders, Cuyahoga App. No. 92605, 2009-Ohio-6459, at ¶ 9, n. 1 (citation deleted). See also State v. Whitaker, Cuyahoga App. No. 83824, 2004-Ohio-5016, ¶ 32.
{¶ 4} Additionally, the complaint has several defects. Whitman did not comply with the requirement that he file an affidavit describing the actions he has filed in state and federal court during the last five years. He also failed to file an affidavit specifying the details of the claim. Each of these defects requires dismissal of the complaint. Furthermore, Whitman has not included the addresses of the parties in the caption, which may also be a ground for dismissal.
Loc. App. R. 45(B)(1)(a).
Morris v. Bur. of Sentence Computation, Cuyahoga App. No. 89517, 2007-Ohio-1444.
Civ. R. 10(A).
Clarke v. McFaul, Cuyahoga App. No. 89447, 2007-Ohio-2520, at ¶ 5.
{¶ 5} 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.
MARY EILEEN KILBANE, P.J., and MELODY J. STEWART, J., CONCUR