State v. Rodney Drenner

• Decision Date: 24 July 1985
• Docket Number: 85-LW-2818,85 CA 7
• Parties: State of Ohio, Plaintiff-Respondent v. Rodney Drenner, Defendant-Relator
• Court: Ohio Court of Appeals

State of Ohio, Plaintiff-Respondent v. Rodney Drenner, Defendant-Relator

No. 85 CA 7.

85-LW-2818 (4th)

Court of Appeals of Ohio, Fourth District Pickaway

July 24, 1985

Rodney Drenner, pro se: #181-39, 15802 State Route 104, Chillicothe Ohio 45601.

COUNSEL FOR RESPONDENT: P. Randall Knece, Law Director, 210 1/2 South Court St., P.O. Box 631, Circleville, Ohio 43113.

DECISION & JUDGMENT ENTRY

GREY J.

Rodney Drenner, an inmate of the Chillicothe Correctional Institute petitioned this court for a writ of mandamus, requiring the Circleville Municipal Court to proceed to trial on an assault charge pending against him in that court. Respondent has moved for dismissal of the action under Civ. R. 12(B)(6), for failure to state a claim upon which relief can be granted, or for Summary Judgment.

As an initial matter, we note that Drenner's petition is miscaptioned. A petition for mandamus must be brought in the name of the State, ex rel the Petitioner-Relator, and must name the officer or office against whom the writ is sought. We consider the matter to be typographical, however, and not jurisdictional.

Proceeding to the respondent's motion to dismiss, we hold that relator's petition fails to state a cause of action in mandamus, but not for the reasons argued by respondent.

A writ of mandamus is an extra-ordinary remedy and requires a showing that (1) relator has a clear legal right to the relief requested, (2) respondent is under a clear legal duty to perform, and (3) relator has no plain and adequate remedy in the ordinary course of law. State, ex rel Butler, v. Demis (1981), 66 Ohio St,. 2d 123.

Although relator does not specifically cite the statutory basis for his claim, it is apparent that he has alleged the giving of notice of his place of imprisonment and request for final disposition of charges under R.C. 2941.401. This statute provides that an inmate is entitled to be brought to trial within one hundred eighty days of delivery of the notice and request. The statute further provides:

If the action is not brought to trial within the time provided, subject to continuance allowed pursuant to this section, no court any longer has jurisdiction therof, the indictment, information, or complaint is void, and the court shall enter an order dismissing the action with prejudice.

Respondent urges that this does not create a clear legal right or a clear legal duty because relator's incarceration prevents him from being transported to the court for trial. Respondent cites as its authority R.C. 2941.40, .41, .42 and .43, the statutory authority and procedure for transporting a convict for trial on pending charges. The statute applies specifically to "[a] convict . . . who escaped, or forfeited his recognizance before receiving sentence for a felony, or against whom an indictment or information for felony is pending." The statute also provides for removal ". . .upon the warrant of the Court of Common Pleas of such county."

According to Respondent, the omission of any reference in R.C. 2941.40 to transportation for misdemeanor charges in municipal court leaves the court without the power to obtain relator's presence at trial, and thus excuses the court's compliance with R.C. 2941.401. Thus relator has no right to trial until his release from confinement, despite the language of R.C. 2941.401.

We need not rule on respondent's interpretation of relator's stautory rights, however, because we find that relator has not established one of the fundamental elements of mandamus, the absence of a plain and adequate remedy in the ordinary course of law. As stated in State, ex rel Bowling, v. Court of Common Pleas (1970), 24 Ohio St. 2d 158, the appropriate remedy under R.C. 2941.401 is a motion for dismissal in the trial court, after the 180 days have passed from the court's receipt of relator's notice and request for disposition. Relator's petition merely requests that this court order that he be tried, and does not allege either the passage of sufficient time or that a motion to dismiss has been made and overturned in the trial court.

Even after the denial of a motion to dismiss, speedy trial issues are not generally subject to the mandamus jurisdiction of this court because an appeal may be taken from the conviction. State, ex rel Woodbury, v. Spitler (1974), 40 Ohio St. 2d 1; State, ex rel Wentz, v. Correll (1975), 41 Ohio St. 2d 101. Of course, if the trial court overrules a proper motion to dismiss but fails to set the case for trial, appeal is not available, and mandamus may be proper, State, ex rel Bell, v. Blair (1975 43 Ohio St. 2d 95; State, ex rel Lotz, v. Hover (1962), 174 Ohio St. 68 (rev'd on other grounds, State, ex rel Lotz, v. Hover (1963), 174 Ohio St. 68).

We conclude that relator's petition fails to state a cause of action in mandamus, and should be dismissed under Civ. R 12(B)(6). Respondent...