Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
Nature of the writ
Revised Code Chapter 2731.
State ex rel. Howard v. Court of Common Pleas
of Lucas County
(2001), 142 Ohio App. 3d 761 -- Adjudicated vexatious litigator failed to apply
for leave to proceed. Mandamus action dismissed as this omission means he can
not demonstrate a clear right to the relief sought or that respondents have a
clear legal duty to perform the act requested.
State ex rel. Cincinnati Enquirer v. Winkler,
149 Ohio App. 3d 350,
2002-Ohio-4803 -- Newspaper sought access to sealed court
records of a police officer who had been acquitted in a notorious case. Court
agrees to determine constitutionality of expungement statute adjunct to a
mandamus action, without requiring paper to seek declaratory judgment. To save
the statute from being found unconstitutional, it is interpreted to require
consideration of the public's right of access in cases of social, historic or
political significance. Also see State ex rel. Cincinnati Enquirer v. Winkler,
150 Ohio App. 3d 10,
2002-Ohio-7334, holding that the trial judge properly
ordered officer's record sealed. See dissent.
State ex rel. Newman v. Gretrick, 155
Ohio App. 3d 696,
2004-Ohio-222 -- Writ of procedendo granted divorce litigant
after an inordinate amount of time had passed for issuing a decision in the
case. Though the 90 days allocated by Sup. R. 40 for issuing a decision had
passed, rules do not create rights in the litigants. However, such rights may
arise otherwise, and here the delay was inordinate. Also see State ex rel
Richard v. Calabrese (1993), 66 Ohio St. 3d 103 applying the same principle
in a mandamus case.
State, ex rel. Pressley, v. Industrial
Commission (1967), 11 Ohio St. 2d 141 -- From the syllabus: "(1) Where a
public officer or agency is under a clear legal duty to perform an act, and
where there is no plain and adequate remedy in the ordinary course of the law,
an action in mandamus will lie originally in the Supreme Court or the Court of
Appeals. * * * (8) Mandamus will not lie to enforce a private right against a
private person. (9) Mandamus will lie to permit a private individual to compel a
public officer to perform an official act, where such officer is under a clear
legal duty to do so, and where the relator has an interest, such as that of a
taxpayer, or he is being denied a private right or benefit by reason of such
public official's failure to take action to perform that act he is under a clear
legal duty to perform." See balance of syllabus and opinion for discussion of
statutory mandamus versus mandamus actions in appellate courts granted original
jurisdiction under the Ohio Constitution.
State, ex rel. Williams, v. Brown (1977),
52 Ohio St. 2d 13, 15 -- "Mandamus and prohibition are extraordinary remedies,
to be issued with great caution and discretion and only when the way is clear."
State ex rel. Cody v. Ohio Supreme Court Board
of Commissioners on Grievances and Discipline (1997), 118 Ohio App. 3d 528
-- Mandamus does not lie in the court of appeals with respect to the work of an
organization adjunct to a court of superior jurisdiction.
State ex rel. Pierce v. Dowler (1993), 89
Ohio App. 3d 670 -- Proper venue for a mandamus action is the county where the
public official from whom records have been requested exercises his functions,
in this case the Identification Chief at BCI in London. Mandamus brought in the
Tenth District Court of Appeals ordered transferred to the Twelfth District,
which includes Madison County.
State ex rel Lindenschmidt v. Butler County
Commissioners (1995), 72 Ohio St. 3d 464 -- It is within the discretion of a
court of appeals to allow an answer to be filed to a mandamus action after the
prescribed 28 days have passed. Civil Rule 6(B)(2) applied.
State ex rel Papp v. Norton (1993), 66
Ohio St. 3d 162 -- Party to a divorce action sought a writ of mandamus
compelling the judge to rule on motions. Judge did not respond to alternative
writ of mandamus previously issued, leading to issuance of peremptory writ.
State ex rel. Hughes v. Celeste (1993), 67
Ohio St. 3d 429 -- Where the effect of the response to a peremptory writ of
mandamus in effect determines the action, the grant of the peremptory writ must
be appealed within thirty days.
State, ex rel. Celebrezze, v. Ohio Fifth
District Court of Appeals (1983), 5 Ohio St. 3d 1 -- In view of
extraordinary delay, contempt may be used to force parties to carry out the
mandate of the Ohio Supreme Court with regard to the fluoridation of Canton's
State ex rel. Davis v. Cleary (1992), 77
Ohio App. 3d 494 -- Intervening decisions of superior courts give rise to an
exception to the law of the case doctrine, permitting lower courts to disregard
the mandate of a superior court when a case has been remanded. In such
circumstances appeal and not mandamus is the remedy.
State ex rel. Tran v. Christian (1996),
108 Ohio App. 3d 578 -- Ohio court may not issue a writ of mandamus directed to
the action of a federal officer or agency.
State ex rel. Wright v. Ohio Adult Parole
Authority (1996), 75 Ohio St. 3d 82 -- Paragraph one of the syllabus: "Civ.
R. 54(B) applies in determining the appealability to the Supreme Court of orders
in original actions, such as mandamus, entered by a Court of Appeals."
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State ex rel. Whiteside v. Fais 91 Ohio
St. 3d 463,
2001-Ohio-97 -- Mandamus properly dismissed after respondent judge
had taken the action sought in the petition. No error in refusal to convert
action to one in prohibition. No error in refusal to grant motion to proceed
in forma pauperis since defendant failed to comply with local court rule
concerning supporting affidavit.
State v. Whitmore, Hamilton App. No. 2003
2003-Ohio-4088, ¶ 5 -- "A direct appeal is not an appropriate mechanism
for determining whether the trial court properly determined that the transcript
is complete. Such a determination would require fact finding, which can only be
accomplished in an original action for mandamus. While App. R. 9(E) might have
some application were an appeal from the judgment of conviction pending in this
court, such is not the case..."
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State ex rel. Carnail v. McCormick,
126 Ohio St. 3d 124,
2010-Ohio-2671 – Mandamus lies to compel trial court judge to conduct a new
sentencing hearing to make postrelease control a part of a life-rape sentence.
State ex rel. Culgan v.
Medina County Court of Common Pleas, 119 Ohio St. 3d 535,
2008-Ohio-4609 – Judgment entry did not set forth the plea or the verdict or
the court findings on which convictions were based as required by Crim. R.
32(C). Trial court denied motion for resentencing. Court of appeals denied writs
of mandamus and procedendo. Reversed. Writs issued.
State v. Staffrey v.
D’Apolito, 188 Ohio App. 3d 56,
2010-Ohio-2529 – Defendant convicted in 1996 filed a motion
to withdraw his guilty plea and asking for resentencing. Basis
was State v. Baker, as the judgment entry did not
include the manner of conviction. When the trial court failed to
rule after ten months relief was sought in mandamus and
procedendo. ¶20: If a court believes it lacks jurisdiction to
grant a motion, a litigant is entitled to the courtesy of an
entry to that effect, so relief may be sought on appeal. ¶23: If
a motion seeks a greater remedy than can be afforded, it does
not bar providing what relief is appropriate. ¶26: The
respondent’s claim no remedy was due makes it unnecessary to
weigh whether ten months was an unreasonable delay. Writ granted
in part. Procedure now nullified by State v. Lester,
130 Ohio St. 3d 303,
rel Badgett v. Mullen, 177 Ohio App. 3d 27,
2008-Ohio-2373 – Taxpayer has standing to bring mandamus
action to compel provision of adequate facilities for the
Marietta Municipal Court. Writ granted. Previously an ordinance
adopted by referendum had blocked establishing new facilities.
State ex rel. Potts v. Commission on
Continuing Legal Education,
93 Ohio St. 3d 452,
2001-Ohio-1586 -- Late provision of codes by the ABA led to
initial lack of credit for CLE courses. CCLE subsequently denied carry-over
credit for these hours. Writ of mandamus granted against the CCLE. Sanctions for
failure to file a timely report had not included denial of carry-over credit.
State, ex rel. Dillard, v. Duncan (1976),
45 Ohio St. 2d 134 -- Mandamus lies to compel court to furnish indigents
appealing their conviction a transcript or reasonable alternative record or
proceedings. Also see State, ex rel. Seigler, v. Rone (1975), 42 Ohio St.
2d 361; State, ex rel. Wright, v. Cohen
(1962), 174 Ohio St. 47. Compare State, ex rel. Clark, v. Marshall
(1980), 63 Ohio St. 2d 107 -- No right to free transcript if no appeal is
pending or leave for delayed appeal has not been granted. State, ex rel.
Knight, v. Tyack (1982), 5 Ohio App. 3d 136 -- Defers decision to Federal
District Court whether a free transcript must be furnished in order for
defendant to pursue habeas action there.
State, ex rel. Turpin, v. Court of Common
Pleas (1966), 8 Ohio St. 2d 116 -- Writ of mandamus issued to compel court
to proceed on post-conviction petition pending for twelve months.
State, ex rel. Ferrell, v. Clark (1984),
13 Ohio St. 3d 3 -- Mandamus lies to compel judge to issue findings of fact and
conclusions of law in a post-conviction case. Also see State, ex rel. Brown,
v. Court (1986), 23 Ohio St. 3d 46.
State ex rel. Botkins v. Laws (1994), 69
Ohio St. 3d 383 -- Writ of mandamus issued to compel county to pay expenses of
village solicitor who prosecuted cases in the county wide municipal court,
however, the writ does not apply to future expenses and the county is not
obligated to pay the entire amount billed if it is not "reasonable."
State ex rel. Smith v. Tate (1991), 77
Ohio App. 3d 228 -- Once defendant's guilty plea had been stricken, he was
entitled to be released from prison and returned to county where prosecution was
pending. Mandamus lies to enforce this right.
State v. Berger (1984), 17 Ohio App. 3d 8
-- Mandamus lies to compel trial judge or jailer to give credit for time already
State, ex rel. Britt v. Board of Franklin
County Commissioners (1985), 18 Ohio St. 3d 5 -- A court of common pleas
possesses inherent authority to require funding for its services at a level that
is both reasonable and necessary to the administration of the judicial process.
Mandamus lies to compel county commissioners to provide only such amount as is
both reasonable and necessary.
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State ex rel. Scruggs v. Sadler, 102
Ohio St. 3d 160,
2004-Ohio-2054 -- Mandamus properly dismissed as moot following
proffer of sought documents as an attachment to judge's motion for summary
judgment. Mandamus sought compliance with Crim. R. 41(D), not
State ex rel. Carr v. Inderlied (2000),
137 Ohio App. 3d 50 -- Inmate sued sentencing judge who imposed costs, and
prison employee who made deduction from his account. Mandamus action dismissed.
(1) As to the judge, the inmate had an adequate remedy at law in appeal from
costs order. (2) As to the employee, remedy was an action pursuant to
2743.02(F) in the Court of Claims.
State ex rel. Gadsen v. Lioi 93 Ohio St.
2001-Ohio-1611 -- Mandamus action properly dismissed where inmate
challenged outcome of probation revocation proceedings. Motion for delayed
appeal (previously denied) or motion to vacate judgment provided adequate
remedies at law.
State ex rel. Chavis v. Griffin (2001), 91
Ohio St. 3d 50 -- Motion to withdraw guilty plea was initially assigned to a
judge other than the one who presided at trial and during a prior postconviction
action, but was transferred to the original judge in accordance with court's
single assignment system. Mandamus does not lie to compel interim judge to
decide motions filed before transfer.
State ex rel Carroll v. Corrigan 91 Ohio
St. 3d 331,
2001-Ohio-54 -- Mandamus does not lie to compel issuance of findings
of fact and conclusions of law in a successive postconviction action. Also see
Stewart v. Corrigan, 97 Ohio St. 3d 80,
State ex rel. Scruggs v. Sadler, 97 Ohio
St. 3d 78,
2002-Ohio-5315 -- Civil Rule 54(B) applies to appeals in mandamus
actions. Since not all claims were resolved, and the trial court did not
expressly determine that there was no just reason for delay in putting on a
partial judgment, there was no final appealable order.
State ex rel. Atkins v. Hoover, 97 Ohio
St. 3d 76,
2002-Ohio-5313, ¶7 -- "...(P)rocendendo rather than mandamus is the
more appropriate means to remedy an inferior court's refusal or failure to
timely dispose of a pending action."
State ex rel Strothers v. Turner (1997),
79 Ohio St. 3d 272 -- TV story maintained juvenile court clerk submitted false
expense reports. Following an investigation, the prosecutor determined there was
no probable cause. Citizen attempted to file complaint, and brought mandamus
action after he was refused. Mandamus will not issue to compel a vain act.
Summary judgment properly granted.
State, ex rel. Kaldor, v. Court (1984), 9
Ohio St. 3d 114 -- Mandamus does not lie to compel the court to conduct an
evidentiary hearing in a post-conviction action as appeal provides an adequate
remedy in the ordinary course of law.
State, ex rel. McMinn, v. Ohio Public Defender
(1985), 26 Ohio App. 3d 16 -- Mandamus does not lie to compel the Ohio Public
Defender to provide representation in a post conviction action where, pursuant
to R.C. 120.06(B), the public defender has determined that the case lacks
State ex rel. Peeples v. Wilford (1995),
72 Ohio St. 3d 407 -- Mandamus does not lie to compel appellate counsel to file
a postconviction petition.
State, ex rel. Smith, v. McGettrick
(1984), 12 Ohio St. 3d 54 -- Where only six weeks have elapsed since the filing
of a post-conviction action, mandamus will not issue to force the prosecutor and
court to proceed on the petition.
State, ex rel. Manning, v. Montgomery
(1988), 39 Ohio St. 3d 140 -- Mandamus does not lie to force the prosecutor to
respond to a post-conviction petition as petitioner may ask to the trial court
to rule on the petition even in the absence of a response.
Hattie v. Anderson (1994), 68 Ohio St. 3d
232 -- Inmate had been approved for release on parole, but this was rescinded
when he wrote to his parole office questioning some of the conditions. (1)
Habeas corpus does not lie in these circumstances since the authority of the
sentencing court was not challenged. (2) Mandamus does provide a remedy. (3) A
declaratory judgment action is the proper remedy to challenge terms of release.
State ex rel. Earl (1999), 85 Ohio St. 3d
370 -- Declaratory judgment, not mandamus, is the proper means for seeking
correction of a prison record with respect to calculation of good time credit
for purposes of parole eligibility.
State ex rel. Hattie v. Goldheart (1994),
69 Ohio St. 3d 123 -- Mandamus does not lie to compel correction of alleged
errors on APA risk assessment score sheet.
State ex rel Jividen v. Toledo Police
Department (1996), 112 Ohio App. 3d 458 -- Replevin, not mandamus, is the
proper means for seeking the return of property held by a police department.
State, ex rel. Miller, v. Gillie (1986),
24 Ohio App. 3d 121 -- Writ of mandamus will not issue to compel trial judge to
excuse jurors expressing scruples against the death penalty when he has yet to
act in the manner complained of, making the application premature.
State, ex rel Boston Heights, v. Petsche
(1985), 27 Ohio App. 3d 106 -- A village cannot create a mayor's court by local
ordinance, nor may it prevail in a mandamus action seeking to force mayor to
establish an mayor's court.
State, ex rel. Bowling, v. Court of Common
Pleas (1970), 24 Ohio St. 2d 158 -- Proper remedy when prisoner has not been
brought to trial within the prescribed time is a motion to dismiss and not a
State, ex rel. Zoller, v. Talbert (1980),
62 Ohio St. 2d 329 -- Appeal and not mandamus is prosecutor's remedy when judge
refuses to impose mandatory days of incarceration upon conviction of OMVI. Also
see State, ex rel. Cleveland, v. Calandra (1980), 62 Ohio St. 2d 121;
State, ex rel. Leis v. Outcalt
(1980), 62 Ohio St. 2d 331.
State, ex rel. Dix, v. Angelotta (1985),
18 Ohio St. 3d 115 -- Mandamus is not available for pretrial review of ruling on
motion for discharge on speedy trial grounds. Also see State, ex rel.
Woodbury, v. Spitler (1974), 40 Ohio St. 2d 1; State, ex rel. Racine, v.
Dull (1975), 44 Ohio St. 2d 72.
State, ex rel. Leis, v. Gusweiler (1981),
65 Ohio St. 2d 60 -- Jeopardy attaches when a no contest plea is accepted. Court
found defendant guilty of attempt instead of rape. Prosecutor not entitled to a
writ of mandamus to compel judge to find defendant guilty of principal offense.
State, ex rel. Sawyer, v. O'Connor (1978),
54 Ohio St. 2d 380 -- Mandamus does not afford a prosecutor a remedy where the
outcome of the hearing on a no contest plea is allegedly erroneous. Since
jeopardy attaches when the court accepts the plea, granting the writ would be a
vain act, as the defendant could not subsequently be found guilty. Also see State, ex rel. Leis, v. Gusweiler
(1981), 65 Ohio St. 2d 58.
State, ex rel. Murr, v. Meyer (1987), 34
Ohio St. 3d 46 -- Mandamus does not lie to compel prosecutor to prosecute
witness for falsification on complaint filed by the person the witness testified
Speakman v. Department of Rehabilitation and
Correction (1987), 36 Ohio App. 3d 36 -- Headnote: "A writ of mandamus will
not issue to compel the Ohio Department of Rehabilitation and Correction to
'speedily' hold a parole revocation hearing in Ohio for an Ohio parolee who is
being incarcerated in another state pursuant to a conviction for a new offense
in that state."
State, ex rel. Thompson, v. Clark (1982),
7 Ohio App. 3d 191 -- Mandamus does not lie to control the exercise of
discretion by the Adult Parole Authority. It may lie where the where the parole
board has failed to perform an act it is legally required to perform. Also see
Swiss v. Ohio Pardon and Parole Commission
(1963), 117 Ohio App. 141, 23 Ohio Ops. 2d 304; State, ex rel. Blake, v.
Shoemaker (1983), 4 Ohio St. 3d 42.
State, ex rel. Ney, v. Niehaus (1987), 33
Ohio St. 3d 118 -- Mandamus does not lie to compel a judge to grant immunity
upon written request of the prosecutor.
R.C. 2945.44(A) gives the judge
discretion to determine that immunity would not further the administration of
State, ex rel. Leis, v. Outcalt (1982), 1
Ohio St. 3d 147 -- Mandamus does lie to compel a judge to set aside an grant of
immunity at the request of the defense and over the objection of the prosecutor.
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