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Bobo v. State

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 31, 2018

KARLOS BOBO RELATOR
v.
STATE OF OHIO RESPONDENT

          Writ of Mandamus Motion No. 517763 Order No. 519196

          KARLOS BOBO, PRO SE SOUTHERN OHIO CORRECTIONAL FACILITY

          ATTORNEYS FOR RESPONDENT MICHAEL C. O'MALLEY CUYAHOGA COUNTY PROSECUTOR BY: JAMES E. MOSS ASSISTANT COUNTY PROSECUTOR THE JUSTICE CENTER

          JUDGMENT

          PATRICIA ANN BLACKMON, JUDGE.

         {¶1} On May 7, 2018, the relator, Karlos Bobo, commenced this mandamus action to compel the respondent to grant his "motion to vacate and/or set aside void conviction or sentence," which he filed on September 5, 2017, in the underlying case, State v. Bobo, Cuyahoga C.P. No. CR-87-223936-ZA. Bobo contends that because he was a juvenile at the subject time and because there was no bindover hearing, the trial court had no jurisdiction over his case, and his conviction and sentence are void ab initio. On May 22, 2018, the respondent, through the Cuyahoga County Prosecutor, moved for summary judgment. Attached to the dispositive motion was a journal entry, file-stamped May 10, 2018, in which the trial court denied the subject motion. Bobo never filed a response. For the following reasons, this court grants the motion for summary judgment and denies the application for a writ of mandamus.

         {¶2} The requisites for mandamus are well established: (1) the relator must have a clear legal right to the requested relief, (2) the respondent must have a clear legal duty to perform the requested relief, and (3) there must be no adequate remedy at law. Additionally, although mandamus may be used to compel a court to exercise judgment or to discharge a function, it may not control judicial discretion, even if that discretion is grossly abused. State ex rel Ney v. Niehaus, 33 Ohio St.3d 118, 515 N.E.2d 914 (1987). Furthermore, mandamus is not a substitute for appeal. State ex rel. Daggett v. Gessaman, 34 Ohio St.2d 55, 295 N.E.2d 659 (1973); State ex rel. Pressley v. Indus. Comm. of Ohio, 11 Ohio St.2d 141, 228 N.E.2d 631 (1967), paragraph three of the syllabus. Furthermore, if the relator had an adequate remedy, regardless of whether it was used, relief in mandamus is precluded. State ex rel. Tran v. McGrath, 78 Ohio St.3d 45, 1997-Ohio-245, 676 N.E.2d 108; State ex rel. Boardwalk Shopping Ctr., Inc. v. Court of Appeals for Cuyahoga Cty., 56 Ohio St.3d 33, 564 N.E.2d 86 (1990). Moreover, mandamus is an extraordinary remedy that is to be exercised with caution and only when the right is clear. It should not issue in doubtful cases. State ex rel Taylor v. Glasser, 50 Ohio St.2d 165, 364 N.E.2d 1 (1977).

         {¶3} To the extent Bobo sought a ruling on his motion to vacate, the matter is moot. The May 10, 2018 journal entry establishes that the trial court fulfilled its duty and Bobo received his requested relief, a ruling on the motion. To the extent that Bobo sought to compel the trial court to grant the motion, the claim is ill-founded. Neither the writ of mandamus nor the writ of procedendo can control judicial discretion. Bobo's proper remedy is now an appeal.

         {¶4} Bobo also did not comply with R.C. 2969.25(C), which requires that an inmate file a certified statement from his prison cashier setting forth the balance in his private account for each of the preceding six months. This also is sufficient reason to deny the mandamus, deny indigency status, and assess costs against the relator. State ex rel. Pamer v. Collier, 108 Ohio St.3d 492, 2006-Ohio-1507, 844 N.E.2d 842; State ex rel. Hunter v. Cuyahoga Cty. Court of Common Pleas, 88 Ohio St.3d 176, 2000-Ohio-285, 724 N.E.2d 420; and Hazel v. Knab, 130 Ohio St.3d 22, 2011-Ohio-4608, 955 N.E.2d 378 - the defect may not be cured by subsequent filings.

         {¶5} Accordingly, this court grants the respondent's motion for summary judgment and denies the application for a writ of mandamus. Relator to pay costs. This court directs the clerk of courts to serve all parties notice of this judgment and its date of entry upon the journal as required by Civ.R. 58(B).

         {¶6} ...


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