State ex rel. Taylor v. Glasser

• Decision Date: 15 June 1977
• Docket Number: No. 76-1165,76-1165
• Citation: 364 N.E.2d 1,50 Ohio St.2d 165
• Parties: , 4 O.O.3d 367 The STATE ex rel. TAYLOR, Appellant, v. GLASSER, Judge, et al., Appellees.
• Court: Ohio Supreme Court

Page 165

50 Ohio St.2d 165

364 N.E.2d 1, 4 O.O.3d 367

The STATE ex rel. TAYLOR, Appellant, v. GLASSER, Judge, et al., Appellees.

No. 76-1165.

Supreme Court of Ohio.

June 15, 1977.

Bruce Taylor (appellant) was indicted for aggravated robbery under R.C. 2911.01, and aggravated burglary under R.C. 2911.11, on May 12, 1976, for incidents occurring during February and March of 1976. On June 2, 1976, appellant was summoned to appear before the Hon. George M. Glasser, Judge of the Court of Common Pleas of Lucas County. At this time, appellant entered a plea of not guilty and a trial date of July 6, 1976, was set.

On July 2, 1976, appellant filed an application for treatment in lieu of conviction, pursuant to R.C. 2951.041. On July 7, 1976, the trial court took the motion under advisement and, on July 19, 1976, announced its decision that R.C. 2951.041 was not available to appellant because the alleged offenses occurred prior to that section's effective date of July 1, 1976.

Appellant thereafter filed a petition for the issuance of a writ of mandamus in the Court of Appeals, ordering the trial court to stay all criminal proceedings and grant a hearing pursuant to R.C. 2951.041. In the alternative, appellant asked for the issuance of a writ of prohibition, preventing the trial court and prosecuting attorney from proceeding further, against the dictates of R.C. 2951.041. The Court of Appeals dismissed the petitions.

The cause is now before this court on an appeal as of right.

Jeffrey I. Goldstein, Cleveland, for appellant.

Anthony G. Pizza, Pros. Atty., Jeffrey D. Swartz and Curtis E. Posner, Toledo, for appellees.

PER CURIAM.

Appellant contends that the denial by the Court of Appeals of the extraordinary writs was in error. His proposition rests upon the following assertions: (1) R.C. 2951.041 is a remedial statute and is applicable since the proceeding occurred after the effective date of the statute; (2) a writ of mandamus or, in the alternative, prohibition should be allowed because R.C. 2951.041 imposes a duty upon the trial court to grant a hearing to those who qualify.

R.C. 2951.041(B) provides, in part:

" * * * Where a plea of not guilty is entered, a trial shall precede further consideration of the offender's request for treatment in lieu of conviction."

It is uncontroverted that a plea of not guilty was entered by appellant. ^* The legislative command is explicit. A trial on appellant's plea of not guilty shall be held before assessment of his request for treatment in lieu of conviction.

Mandamus and prohibition are extraordinary remedies, to be issued with great caution and discretion and only when the way is clear. State ex rel. Kriss v. Richards (1921), 102 Ohio St. 455, 132 N.E. 23; State ex rel. Skinner Engine Co. v. Kouri (1940), 136 Ohio St. 343, 25 N.E.2d 940. The purpose of mandamus is to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station. State ex rel. Riley Constr. Co. v. East Liverpool Bd. of Edn. (1967), 10 Ohio St.2d 25, 225 N.E.2d 246. The function of prohibition is to prevent an inferior court or tribunal from usurping or exercising jurisdiction with which it is not legally vested. State ex rel. Ferrebee v. Court of Appeals (1968), 14 Ohio St.2d 109, 236 N.E.2d 559.

On an appeal as a matter of right from a judgment of the Court of Appeals in an action for an extraordinary writ, the Supreme Court will review the judgment as if the action had...