White v. Suster

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[Cite as White v. Suster, 2004-Ohio-5018.] COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 85103 STATE OF OHIO, EX REL., DEWIGHT WHITE Relator : ORIGINAL ACTION : : : : : : vs. RONALD SUSTER, JUDGE JOURNAL ENTRY AND OPINION : : Respondent DATE OF JOURNALIZATION: CHARACTER OF PROCEEDINGS: JUDGMENT: : SEPTEMBER 21, 2004 WRIT OF MANDAMUS Writ Dismissed. Motion No. 363092 and 363716 Order No. 363801 APPEARANCES: For Relator: DEWIGHT WHITE Inmate No. 331-976 Ri.C.I. P.O. Box 8107 Mansfield, Ohio 44901 For Respondent: WILLIAM D. MASON Cuyahoga County Prosecutor BY: DIANE SMILANICK Assistant County Prosecutor 2 Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 Judge Kenneth A. Rocco: {¶ 1} Relator requests that this court compel respondent court to rule on relator s motion for nunc pro tunc to correct erred judgment of sentence, journal entry of March 28, 1996 ( motion for nunc pro tunc ) in State v. White, Cuyahoga County Court of Common Pleas Case No. CR-333432. White filed the motion for nunc pro tunc on April 3, 2003. He requests that this court compel respondent judge to rule on the motion for nunc pro tunc. {¶ 2} A review of the docket in Case No. CR-333432 reflects that respondent issued a journal entry denying the motion for nunc pro tunc. The clerk entered that motion on September 7, 2004. As a consequence, this action in mandamus is, therefore, moot. {¶ 3} Additionally, White has failed to comply with Loc.App.R. 45(B)(1)(a) which requires that complaints in original actions be supported by an affidavit from the plaintiff or relator specifying the details of the claim. In his affidavit, White avers that I have red [sic] the foregoing Complaint and that the Statements and Averments therein contained are true facts to the best of my knowledge and memory. This conclusory statement is not sufficient to satisfy the requirement of Loc.App.R. 45(B)(1)(a) that the affidavit supporting the complaint specify the details of the claim. The absence of facts specifying the details of the claim required by Loc.App.R. 45(B)(1)(a) is a ground for dismissal. State ex rel. Sansom v. Wilkinson, Cuyahoga App. No. 80743, 2002-Ohio-1385, at 7. See also State v. Sawyer, 3 Cuyahoga App. No. 83682, 2004-Ohio-516. {¶ 4} Accordingly, we dismiss this action sua sponte. Respondent to pay costs. The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B). Writ dismissed. KENNETH A. ROCCO JUDGE MICHAEL J. CORRIGAN, A.J., CONCURS ANNE L. KILBANE, J., CONCURS

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