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State ex rel. Steele v. Frye

Court of Appeals of Ohio, Tenth District

July 24, 2018

The State ex rel. Charles M. Steele, Petitioner,
v.
Judge Richard A. Frye, Respondent.

         IN PROCEDENDO ON RESPONDENT'S MOTION TO DISMISS

         On brief:

          Charles M. Steele, pro se.

          Ron O'Brien, Prosecuting Attorney, and Arthur J. Marziale, Jr., for respondent.

          DECISION

          HORTON, J.

         {¶ 1} Relator, Charles M. Steele, an inmate incarcerated at Chillicothe Correctional Institution, commenced this original action on February 16, 2018, requesting this court to issue a writ of procedendo ordering respondent, the Honorable Judge Richard M. Frye, a judge of the Franklin County Court of Common Pleas, to rule on relator's motion for relief from judgment. On March 27, 2018, respondent filed a motion to dismiss relator's complaint, asserting that relator's request for the writ of procedendo was moot, as respondent ruled on relator's motion on March 9, 2018.

         {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate who issued a decision on April 27, 2018, including findings of fact and conclusions of law, which is appended hereto. The magistrate recommended that this court dismiss relator's complaint as moot, and that fees be waived. Relator has not filed an objection to the magistrate's decision.

         {¶ 3} Respondent attached, to the motion to dismiss, a time-stamped copy of the March 9, 2018 journal entry denying relator's motion. It is well-established that procedendo does not lie to compel performance of a duty that has already been performed. See State ex rel. Fontanella v. Kontos, 117 Ohio St.3d 514, 2008-Ohio-1431, ¶ 6. Thus, as respondent has already ruled on relator's motion, relator is not entitled to a writ of procedendo.

         {¶ 4} Finding no error of law or other defect on the face of the magistrate's decision, this court adopts that decision as our own, including the findings of fact and conclusions of law contained therein. In accordance with the magistrate's recommendation, we grant respondent's motion to dismiss, and dismiss relator's request for a writ of procedendo as moot.

         Action dismissed.

          TYACK and KLATT, JJ., concur.

         Rendered on April 27, 2018

         IN PROCEDENDO ON RESPONDENT'S MOTION TO DISMISS

         MAGISTRATE'S ...


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