State v. Sutula, Unpublished Decision (5-6-1999) ( 1999 )

Relator, Calvin Drake, has filed a "complaint [for] procedendo/mandamus to compel release by writ of habeas corpus for false imprisonment" through which he seeks release from prison on the basis of a denial of the right to a speedy trial. The respondents, Judge Kathleen A. Sutula and Assistant Cuyahoga County Prosecutor Richard Bell, have filed a joint motion for summary judgment.

In order for this court to issue a writ of mandamus, the relator must establish each prong of the following three-part test: 1) the realtor possesses a clear legal right to the relief requested; 2) the respondent possesses a clear legal duty to perform the requested act; and 3) the relator possesses no plain and adequate remedy at law. State ex rel. Carter v. Wilkinson (1994), 70 Ohio St.3d 65. Procedendo is an extraordinary remedy, issued by a court of superior jurisdiction, ordering a lower court to proceed to judgment in a case. State ex rel. Garnett v.Lyons(1975), 44 Ohio St.2d 125.

In the case sub judice, the relator has failed to establish that the respondents possess any duty to release the relator from prison. State ex rel. Westchester Estates, Inc. v. Bacon(1980)37 Ohio St.2d 42. In addition, the relator has failed to demonstrate the existence of any circumstances that require the respondents to proceed to judgment. State ex rel. Hand v.Cuyahoga County Probate Court(1991), 62 Ohio St.3d 110.

Once again, the relator is forewarned that the filing of any other original action that is found to be frivolous shall result in the revocation of the relator's in forma pauperis status.

Accordingly, we grant the respondents' motion for summary judgment. Costs to relator.

Writ denied.

ANN DYKE. J., CONCURS

___________________________________ JAMES M. PORTER ADMINISTRATIVE JUDGE