State ex rel. Fortson v. Griffin

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[Cite as State ex rel. Fortson v. Griffin, 2010-Ohio-783.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 94612 STATE OF OHIO, EX REL. RALPH FORTSON RELATOR vs. BURT W. GRIFFIN, JUDGE RESPONDENT JUDGMENT: COMPLAINT DISMISSED Writ of Mandamus Order No. 430933 RELEASE DATE: March 1, 2010 2 FOR RELATOR Ralph Fortson, pro se Inmate # 454-644 Mansfield Correctional Inst. P.O. Box 788 Mansfield, Ohio 44901 ATTORNEY FOR RESPONDENT William D. Mason Cuyahoga County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR. J.: {¶ 1} Ralph Fortson, the relator, has filed a complaint for a writ of mandamus. Fortson seeks an order from this court, which requires Judge Michael P. Donnelly, the respondent, to re-enter a judgment entry of conviction and sentence in the underlying action of State v. Fortson, Cuyahoga County Court of Common Pleas Case No. CR-4399971. For the following reasons, we sua sponte dismiss Fortson s complaint for a writ of mandamus. 1 Pursuant to Civ.R. 21 and Civ.R. 25(D)(1), Judge Michael P. Donnelly is substituted for Judge Burt W. Griffin. 3 {¶ 2} Fortson, through his complaint for a writ of mandamus, argues that the sentencing journal entry of November 13, 2003, fails to comport with the requirements of Crim.R. 32(C) and R.C. 2505.02. Specifically, Fortson argues that the failure to include within the sentencing journal entry the means of conviction results in a defective sentencing journal entry that requires resentencing and entry of a new sentencing journal entry. {¶ 3} Contrary to Fortson s argument, the sentencing journal entry of November 13, 2003, is not defective and fully complies with Crim.R. 32(C) and R.C. 2505.02. The Supreme Court of Ohio, in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, established that a sentencing journal entry is a final appealable order under R.C. 2505.02 and complies with Crim.R. 32(C) when it sets forth: (1) the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry on the journal by the clerk of the court. {¶ 4} In the case sub judice, the sentencing journal entry of November 13, 2003, provides that [o]n a former day of court defendant plead guilty to aggravated robbery with 3 year firearm specification ORC 2911.01 F-1 (SB2) as amended in count 1 and attempt murder ORC 2903.02 F-2 (SB2) as amended in count 2. The sentencing journal entry fully complies with the 4 means of conviction requirement as established in Baker. Thus, Judge Donnelly possesses no duty to resentence Fortson. It must also be noted that neither mandamus nor procedendo will compel the performance of a duty that has already been performed. State ex rel. Fontanella v. Kantos, 117 Ohio St.3d 514, 2008-Ohio-1431, 885 N.E.2d 220; State ex rel. Howard v. Doneghy, 102 Ohio St.3d 355, 2004-Ohio-3207, 810 N.E.2d 958. {¶ 5} Accordingly, we sua sponte dismiss Fortson s complaint for a writ of mandamus. Costs to Fortson. It is further ordered that the Clerk of the Eighth District Court of Appeals serve notice of this judgment upon all parties as required by Civ.R. 58(B). Complaint dismissed. FRANK D. CELEBREZZE, JR., JUDGE MARY EILEEN KILBANE, P.J., and JAMES J. SWEENEY, J., CONCUR

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