Opinion
No. 37028
Decided March 21, 1962.
Mandamus — Remedy available only where clear legal right shown — Criminal procedure — Delay in acting on motion — Section 2937.21, Revised Code, not applicable, when — Parties.
APPEAL from the Court of Appeals for Allen County.
The appellant, Rolland Maloney, an inmate in the Ohio Penitentiary, instituted this proceeding in mandamus in the Court of Appeals for Allen County. In his petition he alleges that he filed in the Common Pleas Court of Allen County a motion to vacate his sentence, on the ground that the indictment was void and the court was without jurisdiction of the subject matter and of the defendant for the reason that the indictment charged two offenses, burglary and larceny, in the same count of the indictment; that he thereafter filed in the same court a motion to be discharged forthwith from his imprisonment, for the reason that ten days expired since the first motion was filed and no action has been taken by the court on such motion as required by Section 2937.21, Revised Code, providing that no continuance shall extend for more than ten days; and that no action on the motion was taken by the court.
Appellant contends that the failure of the court to act on the motion is a denial of his constitutional rights.
The prayer of the petition is that a writ issue commanding the appellees to discharge appellant from his imprisonment in the penitentiary.
The Court of Appeals denied the writ.
An appeal as of right brings the cause to this court for review.
Mr. Rolland Maloney, in propria persona. Mr. Robert L. Balyeat, prosecuting attorney, for appellees.
This action in mandamus was not instituted in conformity with the provision of Section 2731.04, Revised Code, that "application for the writ of mandamus must be by petition, in the name of the state on the relation of the person applying." Gannon v. Gallagher, Dir., 145 Ohio St. 170.
The relator in a mandamus proceeding has the burden of showing a clear legal right to the relief sought. This the appellant has failed to do. Section 2937.21, Revised Code, relied on by appellant, is not applicable after the trial, judgment and sentence. That section applies to "any stage of the proceeding."
The judgment of the Court of Appeals denying the writ is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, MATTHIAS, BELL, KERNS and O'NEILL, JJ., concur.
TAFT, J., concurs in the judgment.
KERNS, J., of the Second Appellate District, sitting by designation in the place and stead of HERBERT, J.