State ex rel. Anello v. Falvey

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[Cite as State ex rel. Anello v. Falvey, 2008-Ohio-2940.] COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO, EX REL., BELINDA RIFE ANELLO Relator -vsJUDGE MARY A. FALVEY Respondent : : : : : : : : : : JUDGES: Hon. John W. Wise, P.J. Hon. Julie A. Edwards, J. Hon. Patricia A. Delaney, J. CASE NO. 2008CA00059 OPINION CHARACTER OF PROCEEDING: Petition for Writ of Mandamus JUDGMENT: WRIT DENIED DATE OF JUDGMENT ENTRY: June 9, 2008 APPEARANCES: For Relator: For Respondent: NICHOLAS SWYRYDENKO Suite 105 1000 S. Clleveland-Massillon Road Akron, OH 44333 GABRIEL M. WILDMAN Assistant Prosecutor 218 Cleveland Avenue, S.W. Canton, OH 44702 Stark County, Case No. 2008CA00059 2 Wise, P.J., {¶1} Relator has filed a Petition for Writ of Mandamus requesting a writ be issued requiring Respondent issue Findings of Fact and Conclusions of Law in support of the trial court s ruling on Relator s Motion for Post-Conviction Relief. Respondent has filed a motion to dismiss on the basis municipal courts lack jurisdiction to entertain motions for post-conviction relief. Relator has not filed a response to the motion to dismiss. {¶2} On November 13, 2006, Relator was convicted by a jury of two counts of Cruelty to Animals, misdemeanors of the second degree, in the Canton Municipal Court. Relator appealed her conviction to this Court wherein her conviction was affirmed. The Supreme Court dismissed Relator s appeal. Relator filed a motion for post-conviction relief while her case was pending before the Supreme Court. Respondent issued a ruling on Relator s motion for post-conviction relief which stated, Defendant s petition for post-conviction relief and request for evidentiary hearing is overruled. {¶3} Relator relies on our holding in State ex rel. Baldwin v. Reinbold, 2008- Ohio-837 which stands for the proposition that timely filed motions for post-conviction relief must contain Findings of Fact and Conclusions of Law. Inherent in this holding is the principle that a petition cannot be considered timely filed if the court in which it is filed lacks jurisdiction to entertain the motion. {¶4} The Supreme Court has clearly stated municipal courts lack jurisdiction to hear motions for post-conviction relief, [W]e hold that a municipal court is without jurisdiction to review a petition for post-conviction relief filed pursuant to R.C. 2953.21. State v. Cowan, 101 Ohio St.3d 372, 375, 805 N.E.2d 1085, 1089. A review of Stark County, Case No. 2008CA00059 3 Relator s petition for post-conviction relief reveals a petition which was filed pursuant to R.C. 2953.21, therefore, Respondent was without jurisdiction to review the petition. Because Respondent lacked jurisdiction to review the petition, it necessarily follows that Respondent is not required to issue Findings of Fact and Conclusions of Law. For these reasons, the Petition for Writ of Mandamus is denied. {¶5} WRIT DENIED. {¶6} COSTS TO RELATOR. By: Wise, P.J. Edwards, J. and Delaney, J. concur /S/ JOHN W. WISE______________ HON. JOHN W. WISE /S/ JULIE A. EDWARDS__________ HON. JULIE A. EDWARDS /S/ PATRICIA A. DELANEY_______ HON. PATRICIA A. DELANEY [Cite as State ex rel. Anello v. Falvey, 2008-Ohio-2940.] COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO, EX REL., BELINDA RIFE ANELLO Relator -vsJUDGE MARY A. FALVEY Respondent : : : : : : : : : : CASE NO. 2008CA00059 JUDGMENT ENTRY For the reasons stated in the Memorandum-Opinion on file, Relator s Writ of Mandamus is hereby denied. Costs taxed to Relator. _____________________________ HON. JOHN W. WISE _____________________________ HON. JULIE A. EDWARDS _____________________________ HON. PATRICIA A. DELANEY

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