State ex rel. Elliott v. Haas

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[Cite as State ex rel. Elliott v. Haas, 2011-Ohio-1037.] COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE EX REL. BRADLEY ELLIOTT Relator -vsHONORABLE JOHN G. HAAS Respondent : : : : : : : : : JUDGES: Hon. W. Scott Gwin, P.J. Hon. Julie A. Edwards, J. Hon. Patricia A. Delaney, J. Case No. 2010-CA-00281 OPINION CHARACTER OF PROCEEDING: Writ of Mandamus JUDGMENT: Dismissed DATE OF JUDGMENT ENTRY: March 7, 2011 APPEARANCES: For: Relator For: Respondent BRADLEY ELLIOTT PRO SE BECI Box 540 St. Clairsville, OH 43950 KATHLEEN O. TATARSKY Assistant Prosecuting Attorney Appellate Section Stark County Prosecutor s Office 110 Central Plaza South, Ste. 510 Canton, OH 44702-1413 [Cite as State ex rel. Elliott v. Haas, 2011-Ohio-1037.] Gwin, P.J. {¶1} Relator, Bradley Elliott, has filed a Petition for Writ of Mandamus challenging the trial court s imposition of court costs without having considered Relator s ability to pay. Respondent has also filed an Answer as well as a motion to dismiss or motion for summary judgment. {¶2} For a writ of mandamus to issue, the relator must have a clear legal right to the relief prayed for, the respondent must be under a clear legal duty to perform the requested act, and relator must have no plain and adequate remedy in the ordinary course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50, 451 N.E.2d 225. {¶3} We have previously held, the appropriate forum for challenging court costs is by way of appeal from the sentencing entry; therefore, an adequate remedy at law exists for making such a challenge. See State of Ohio ex rel. Biros v. Logan, 2003 WL 22326666, *2 (Ohio App. 11 Dist.) ( [T]he propriety of a decision to impose court costs on a convicted defendant can only be contested in a direct appeal from the sentencing judgment.). See Wuescher v. Whitney 2008 WL 142575, 1 (Ohio App. 5 Dist.) and State ex rel. Bachman v. Heath, 2010 WL 320478, 2 (Ohio App. 5 Dist.). {¶4} Other courts have similarly held, [A defendant s] legal remedy to challenge the court's imposition of court costs [is] by direct appeal of his sentencing entry. Threatt, supra. See, also, State ex rel. Biros v. Logan, Trumbull App. No.2003-T0016, at ¶ 10 (finding that res judicata bars relator from collaterally attacking an order imposing court costs in a mandamus action). State v. Russell, 2011 WL 334184, 3 (Ohio App. 2 Dist.). Stark County, Case No. 2010-CA-00281 {¶5} 3 Because Relator has or had an adequate remedy at law to challenge the imposition of court costs, a writ of mandamus does not lie. For this reason, we grant Respondent s motion to dismiss. {¶6} RESPONDENT S MOTION TO DISMISS GRANTED. {¶7} PETITION DISMISSED. {¶8} COSTS TO RELATOR. {¶9} IT IS SO ORDERED. By Gwin, P.J., Edwards, J., and Delaney, J., concur _________________________________ HON. W. SCOTT GWIN _________________________________ HON. JULIE A. EDWARDS _________________________________ HON. PATRICIA A. DELANEY WSG:clw 0209 [Cite as State ex rel. Elliott v. Haas, 2011-Ohio-1037.] IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE EX REL. BRADLEY ELLIOTT Relator -vsHONORABLE JOHN G. HAAS Respondent : : : : : : : : : : : JUDGMENT ENTRY CASE NO. 2010-CA-00281 For the reasons stated in our accompanying Memorandum-Opinion, Respondent s Motion to Dismiss is granted, and the instant cause is dismissed. Costs to Relator. _________________________________ HON. W. SCOTT GWIN _________________________________ HON. JULIE A. EDWARDS _________________________________ HON. PATRICIA A. DELANEY

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