Opinion
No. 90-1
Submitted February 6, 1990 —
Decided April 4, 1990.
Mandamus — Writ not available, when — Issue moot.
APPEAL from the Court of Appeals for Lucas County, No. L-89-315.
On November 6, 1987, appellant, John Martin, was found guilty in the Court of Common Pleas of Lucas County of one count of aggravated burglary and three counts of rape. On November 9, 1987, he was sentenced to eleven to twenty-five years' imprisonment on the aggravated burglary count and three concurrent sentences of ten to twenty-five years' imprisonment on the rape counts, to run consecutively to the aggravated burglary sentence. On November 16, 1987, he appealed. On January 20, 1989, the Court of Appeals for Lucas County affirmed the conviction. On August 2, 1989, we overruled appellant's motion for leave to appeal (case No. 89-929). See 44 Ohio St.3d 714, 542 N.E.2d 1110.
On October 23, 1989, appellant filed a "Petition for Writ of Procedendo, Alternative Writ of Mandamus" against appellees, the judges of the Court of Common Pleas of Lucas County, alleging a denial of statutory rights, apparently, but by no means clearly, because appellees had not ruled on his motion for production of his trial transcript, which he alleged had been filed on May 13, 1989.
On November 9, 1989, the court of appeals dismissed appellant's "petition," sua sponte, stating in part:
"Our research [of the trial court record] has failed to disclose the motion [for transcripts] that relator asserts was filed on May 13, 1989 [and] [a]dditionally after an analysis of relator's petition and the trial court record, we are unable to determine what relief relator is seeking.
"Accordingly, relator's application for writ of procedendo or, in the alternative, a writ of mandamus is denied."
On November 27, 1989, appellees moved to dismiss appellant's petition, attaching a copy of the trial court docket, which showed that he filed a motion for production of transcript on February 22, 1989, which was granted on April 20, 1989, and attaching a certification that a copy of the transcript had been mailed to appellant on November 22, 1989. On December 5, 1989, the appellate court denied the appellees' motion to dismiss as moot because of its previous dismissal of the petition.
The cause is before this court upon an appeal as a matter of right.
John Martin, pro se. Anthony G. Pizza, prosecuting attorney, and James C. Walter, for appellees.
In his argument in the court of appeals, appellant apparently sought to vindicate a statutory right to speedy action on his motion for a transcript. Here, he alleges violations of rights via alleged procedural errors in the trial court. Appellant's assertions of various violations of constitutional and statutory rights have no remedy in procedendo or mandamus. The former writ commands a lower court to proceed to judgment; the latter orders a public official to perfor a clear legal duty. The record shows that appellees granted appellant's motion for production of transcript on April 20, 1989, and that it was mailed to him on November 22, 1989. Neither procedendo nor mandamus may compel appellees to perform a duty already performed. State, ex rel. Breaux, v. Court of Common Pleas (1977), 50 Ohio St.2d 164, 4 O.O. 3d 352, 363 N.E.2d 743. Therefore, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT AND H. BROWN, JJ., concur.
RESNICK, J., not participating.