Moore v. Sutula

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[Cite as Moore v. Sutula, 2009-Ohio-5234.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 93774 LATVIUS MOORE RELATOR vs. JUDGE KATHLEEN A. SUTULA RESPONDENT JUDGMENT: WRIT DENIED WRIT OF MANDAMUS MOTION NO. 425857 ORDER NO. 425930 RELEASE DATE: September 28, 2009 2 FOR RELATOR Latvius Moore, pro se Inmate No. A399-222 Chilicothe Correctional Inst P.O. Box 5500 Chilicothe, Ohio 45301 ATTORNEYS FOR RESPONDENT William D. Mason Cuyahoga County Prosecutor BY: James E. Moss Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 JUDGE MARY J. BOYLE: {¶ 1} On August 14, 2009, relator Latvius Moore commenced this mandamus action against Judge Kathleen Sutula. The facts before this court indicate that Moore was convicted of one count of aggravated robbery; one count of felonious assault; one count of aggravated burglary; and one count of kidnaping. On appeal, Moore s convictions were affirmed in part but remanded for re-sentencing due to the lower court s failure to make required findings for imposition of more than a minimum sentence. See State v. Moore, Cuyahoga App. No. 79353, 2002-Ohio-2133. {¶ 2} Pursuant to this court s remand, Moore was re-sentenced and again appealed. On appeal, Moore s case was again remanded for re-sentencing 3 because the lower court failed to make the requisite findings before imposing consecutive sentences. See State v. Moore, Cuyahoga App. No. 81724, 2003-Ohio-3349. {¶ 3} Moore was once again re-sentenced and on appeal, Moore s sentence was again remanded because the lower court failed to make the appropriate findings pursuant to Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531. See State v. Moore, Cuyahoga App. No. 83653, 2004-Ohio-5383. {¶ 4} Moore now brings this mandamus action against Judge Sutula to compel her to re-sentence him pursuant to this court s latest remand. On September 1, 2009, Judge Sutula, through the Cuyahoga County Prosecutor s office, filed a motion for summary judgment. For the following reason, we grant the motion for summary judgment. {¶ 5} Initially, we find that Moore s complaint for a writ of mandamus is defective since it is improperly captioned. A complaint for a writ of mandamus must be brought in the name of the state, on relation of the person applying. Moore s failure to properly caption the complaint warrants dismissal. Maloney v. Court of Common Pleas of Allen Cty. (1962), 173 Ohio St. 226, 181 N.E.2d 270; Dunning v. Judge Cleary (Jan. 11, 2001), Cuyahoga App. No. 78763. {¶ 6} Nevertheless, attached to the motion for summary judgment is a copy of the journal entry which indicates that on August 26, 2009, Judge Sutula re-sentenced Moore pursuant to this court s remand. Accordingly, we find that Moore s petition for a writ of mandamus is moot. State ex rel. Grant v. Coleman 4 (1983), 6 Ohio St.3d 5, 450 N.E.2d 1163; State ex rel. Jerningham v. Cuyahoga Cty. Court of Common Pleas (1996), 74 Ohio St.3d 278, 658 N.E.2d 723. {¶ 7} Accordingly, we grant Judge Sutula s motion for summary judgment. Respondent to bear costs. It is further ordered that the clerk shall serve upon all parties notice of this judgment and date of entry pursuant to Civ.R. 58(B). Writ denied. MARY J. BOYLE, JUDGE CHRISTINE T. MCMONAGLE, P.J., and JAMES J. SWEENEY, J., CONCUR

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