State ex rel. Davie v. Callahan
State ex rel. Davie v. Callahan
Opinion of the Court
The motion to dismiss is sustained, and the cause is dismissed.
Dissenting Opinion
dissenting. I respectfully dissent. Based on the record before this court, I would grant relator Michael Davie’s petition for a writ of procedendo.
Davie filed a motion for postconviction relief on April 4, 1996. On December 12, 1996, Davie filed a motion to amend his motion for postconviction relief. On January 21,1997, the respondent ordered that Davie’s “motion to amend Petition for Post-conviction relief * * * is not well taken and is hereby denied.” (Emphasis added.)
On June 5, 1997, Davie filed a petition for a writ of procedendo seeking to compel the court to rule on his motion for postconviction relief. On June 6, 1997, the court denied Davie’s petition for a writ of procedendo. In the order the court stated, “IT IS HEREBY ORDERED that the Defendant’s Motion is without merit and is hereby DENIED. The Defendant’s post-conviction relief was denied on 1/21/97 and is dispositive as to both this motion and the preceding .motion for summary judgment.”
An examination of the court’s January 21, 1997 order reveals that it denied only the motion to amend. Therefore, Davie’s motion for postconviction relief
A writ of procedendo may lie where an inferior court fails to timely dispose of a pending action. State ex rel Levin v. Sheffield Lake (1994), 70 Ohio St.3d 104, 110, 637 N.E.2d 319, 324. Accordingly, since the respondent has failed to timely rule upon Davie’s motion and Davie has no other plain and adequate remedy in the ordinary course of law, I would issue a writ of procedendo in this case.
. I recognize that the record before this court is limited to the parties’ brief and attachments.
. In State ex reí Dehler v. Sutula (1995), 74 Ohio St.3d 33, 35, 656 N.E.2d 332, 333-334, this court essentially held that the determination of whether a court unduly delayed ruling on a motion should be measured from the date of the last motion filed by the petitioner which pertains to the original motion (excluding any motions to compel or motions seeking writs). In the ease at bar, I would determine that date to be December 12, 1996, which is the date that Davie filed the motion to amend his motion for postconviction relief.
Reference
- Full Case Name
- The State ex rel. Davie v. Callahan, Judge
- Cited By
- 2 cases
- Status
- Published