State ex rel. Pickett v. McMonagle
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[Cite as State ex rel. Pickett v. McMonagle, 2010-Ohio-4368.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 95362 STATE OF OHIO, EX REL. EDWARD PICKETT RELATOR vs. JUDGE TIMOTHY MCMONAGLE RESPONDENT JUDGMENT: COMPLAINT DISMISSED Writ of Mandamus Motion Nos. 435941 and 437035 Order No. 437104 RELEASE DATE: September 14, 2010 2 FOR RELATOR Edward Pickett, pro se 1801 E. 12th Street, #717 Cleveland, Ohio 44114 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 JAMES J. SWEENEY, J.: {¶ 1} Relator, Edward Pickett, is the defendant in State v. Pickett, Cuyahoga County Court of Common Pleas Case Nos. CR-533533 and CR-536728, which have been assigned to respondent judge. Pickett asserts that the date of offense in Case No. CR-536728 is the same as in Case No. CR-533533. As a consequence, he requests that this court issue a writ of mandamus compelling respondent to dismiss Case No. CR-533533. {¶ 2} Respondent has filed a motion to dismiss and observes that Pickett is asserting double jeopardy as a ground for relief in mandamus. Pickett has not filed a response to the motion to dismiss. He did, however, file a motion for 3 summary judgment (without any supporting, evidentiary material) in which he contends that the federal constitution prohibits prosecution under 2 different case numbers pertaining to the same alledged [sic] charges. {¶ 3} It is well-established, however, that a double jeopardy claim is not cognizable in mandamus. State ex rel. Dix v. McAllister, 81 Ohio St.3d 107, 108, 1998-Ohio-646, 689 N.E.2d 561. We must hold, therefore, that Pickett s complaint in mandamus fails to state a claim upon which relief can be granted, grant respondent s motion to dismiss and deny Pickett s motion for summary judgment. {¶ 4} Pickett s complaint and supporting documentation are also defective. That is, he has failed to file an affidavit specifying the details of the claim as required by Loc.App.R. 45(B)(1)(a). Morris v. Bur. of Sentence Computation, Cuyahoga App. No. 89517, 2007-Ohio-1444 (dismissing a complaint in mandamus). {¶ 5} Accordingly, respondent s motion to dismiss is granted and relator s motion for summary judgment is denied. Relator 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). Complaint dismissed. JAMES J. SWEENEY, JUDGE 4 MARY EILEEN KILBANE, P.J., and MELODY J. STEWART, J., CONCUR
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