Lowe v. Callahan
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Lowe sought, by writ of procedendo, to compel Judge Callahan, to issue a ruling on his motion in arrest of judgment, alleging that he filed his motion on August 10, 2012, and that Judge Callahan has not ruled on it. The court of appeals dismissed the matter as moot because the judge had ruled on Lowe’s motion on August 22, 2012. The Ohio Supreme Court affirmed. Lowe’s argument was not that the judge failed to rule on his motion but that she addressed the wrong issue in her ruling, an argument that should have been raised in an appeal of the ruling.
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[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Lowe v. Callahan, Slip Opinion No. 2013-Ohio-3689.] NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. SLIP OPINION NO. 2013-OHIO-3689 [THE STATE EX REL.] LOWE, APPELLANT, v. CALLAHAN, JUDGE, APPELLEE. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Lowe v. Callahan, Slip Opinion No. 2013-Ohio-3689.] Court of appeals judgment dismissing complaint for writ of procedendo affirmed Procedendo will not compel the performance of a duty that has already been performed. (No. 2013-0441 Submitted August 21, 2013 Decided September 4, 2013.) APPEAL from the Court of Appeals for Summit County, No. 26758. ____________________ Per Curiam. {¶ 1} We affirm the judgment of the court of appeals denying relief to appellant, Dennis Ray Lowe, on his complaint for a writ of procedendo. Lowe seeks to compel appellee, Judge Lynne Callahan, to issue a ruling on his motion in arrest of judgment. He alleges that he filed his motion on August 10, 2012, and that Judge Callahan has not ruled on it. SUPREME COURT OF OHIO {¶ 2} Judge Callahan moved the court of appeals to dismiss the complaint, arguing that the action was moot because she had ruled on Lowe s motion on August 22, 2012. The Ninth District Court of Appeals granted the motion. Lowe appealed as of right. {¶ 3} In his first proposition of law, Lowe argues that Judge Callahan s ruling on August 22, 2012, was on the wrong issue. Lowe claims that his motion dealt with a structural-error violation, not a speedy-trial violation. He claims that the judge s failure to rule on the correct violation violates his due process rights. In his second proposition of law, he likewise argues that the Ninth District should not have dismissed his complaint for a writ of procedendo, because the judge did not rule on his structural-error challenge. {¶ 4} As the court below correctly reasoned, relief is unwarranted here because procedendo will not compel the performance of a duty that has already been performed. State ex rel. Fontanella v. Kontos, 117 Ohio St.3d 514, 2008Ohio-1431, 885 N.E.2d 220, ¶ 6, citing State ex rel. Howard v. Doneghy, 102 Ohio St.3d 355, 2004-Ohio-3207, 810 N.E.2d 958, ¶ 6. Judge Callahan ruled on Lowe s motion on August 22, 2012, only 12 days after he had filed it. Therefore, the judge has performed the duty that the writ of procedendo seeks to compel. {¶ 5} Lowe s argument is not that the judge failed to rule on his motion but that she addressed the wrong issue in her ruling. That argument should have been raised in an appeal of the ruling rather than in an action for a writ of procedendo. {¶ 6} Based on the foregoing, we affirm the judgment of the court of appeals. Judgment affirmed. O CONNOR, C.J., and PFEIFER, O DONNELL, LANZINGER, KENNEDY, FRENCH, and O NEILL, JJ., concur. ____________________ 2 January Term, 2013 Dennis Ray Lowe, pro se. Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Richard S. Kasay, Assistant Prosecuting Attorney, for appellee. ________________________ 3
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