State ex rel. Zoller v. Talbert

• Court: Ohio Supreme Court
• Writing for the Court: PER CURIAM; CELEBREZZE
• Citation: State ex rel. Zoller v. Talbert, 405 N.E.2d 724, 62 Ohio St.2d 329, 16 O.O.3d 391 (Ohio 1980)
• Decision Date: 18 June 1980
• Docket Number: No. 79-1613,79-1613
• Parties: , 16 O.O.3d 391 The STATE ex rel. ZOLLER, Dir. of Law, Appellant, v. TALBERT, Judge, Appellee.

Page 329

62 Ohio St.2d 329

405 N.E.2d 724, 16 O.O.3d 391

The STATE ex rel. ZOLLER, Dir. of Law, Appellant, v. TALBERT, Judge, Appellee.

No. 79-1613.

Supreme Court of Ohio.

June 18, 1980.

Thomas M. Zoller, Tiffin, director of law, pro se.

Arthur F. Graham, Tiffin, for appellee.

PER CURIAM.

The Court of Appeals erred in holding that appellant lacked standing to maintain this cause.

Pursuant to Section 6.02(C) of the charter of the city of Tiffin, the law director "shall be the prosecuting attorney" for the city. In his prosecutorial capacity, the law director has that degree of discretion necessary to effectively carry out his obligations to the city. One such obligation is to seek proper punishment for those convicted of disobeying the laws of the city and of the state of Ohio.

By virtue of this obligation, appellant, in his official capacity, "has a beneficial interest in the subject matter of * * * (this) action, and * * * such interest * * * (is) different from and transcend(s) that of the citizenry generally." State, ex rel. Harris, v. Silbert (1959), 169 Ohio St. 261, 265, 159 N.E.2d 439, 442 (construing R.C. 2731.02). Appellant, therefore, has standing to maintain an action in mandamus to compel compliance with the mandatory sentencing provisions imposed by statute. See State, ex rel. Moraites, v. Gorman (1975), 42 Ohio St.2d 175, 326 N.E.2d 868 (by implication).

Despite our disagreement with the determination of the Court of Appeals on the issue of standing, we nevertheless affirm that court's dismissal of the complaint in mandamus. R.C. 2945.67(A) provides, in part, that:

"A * * * city director of law * * * may appeal by leave of the court to which the appeal is taken any other decision, except the final verdict, of the trial court in a criminal case * * *."

In the recent case of State, ex rel. Cleveland, v. Calandra (1980), 62 Ohio St.2d 121, 403 N.E.2d 989, this court held that R.C. 2945.67(A) provides a plain and adequate remedy at law to correct errors in sentencing. "Until leave to appeal is sought and denied, a remedy in the ordinary course of law exists which is adequate to afford the review the appellant herein seeks." Id. at pages 122-123, 403 N.E.2d at page 990.

It is true that language in the Calandra decision reasonably could be interpreted as distinguishing that case, in which the trial court had found the sentencing ordinance unconstitutional prior to refusing to impose the mandatory prison sentence, from State, ex rel. Moraites v. Gorman (1975), 42 Ohio St.2d 175, 326 N.E.2d 868, wherein the trial court simply ignored the mandatory sentencing statute. The more definitive statement would have been that Gorman was...