State ex rel. Mack v. Ambrose

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[Cite as State ex rel. Mack v. Ambrose, 2009-Ohio-3746.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 93454 STATE OF OHIO, EX REL., COLUMBIA C. MACK RELATOR vs. JUDGE DICK AMBROSE RESPONDENT JUDGMENT: WRIT DENIED WRIT OF PROCEDENDO MOTION NO. 423853 ORDER NO. 423678 RELEASE DATE: July 27, 2009 2 FOR RELATOR Columbia Mack, pro se Inmate No. 563-632 Madison Correctional Inst. P.O. Box 740 London, Ohio 43140-0740 ATTORNEYS FOR RESPONDENT William D. Mason Cuyahoga County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 KENNETH A. ROCCO, P.J.: {¶ 1} Columbia C. Mack has filed a complaint for a writ of procedendo. Mack seeks an order from this court, which requires Judge Dick Ambrose to render findings of fact in support of the denial of a motion to discharge for failure to comply with the speedy trial provisions of R.C. 2945.71. For the following reasons, we grant Judge Ambrose s motion for summary judgment. {¶ 2} Initially, we find that Mack has failed to comply with R.C. 2969.25, which requires the attachment of an affidavit to the complaint for a writ of procedendo that describes each civil action or appeal filed within the previous five years in any state or federal court. Mack s failure to comply with R.C. 2969.25 warrants the dismissal of the complaint for a writ of procedendo. State 3 ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 1998-Ohio-218, 696 N.E.2d 594; Alford v. Winters, 80 Ohio St.3d 285, 1997-Ohio-117, 685 N.E.2d 1242. It must also be noted that Mack has failed to comply with Loc.App.R. 45(B)(1)(a), which mandates that his complaint for a writ of procedendo must be supported by an affidavit that specifies the details of the claim. State ex rel. Smith v. McMonagle (July 17, 1996), Cuyahoga App. No. 70899; State ex rel. Calabrese (Jan. 18, 1996), Cuyahoga App. No. 70077. {¶ 3} Finally, the Supreme Court of Ohio has established that a trial court does not possess a duty to issue findings of fact when a request for such findings has not been timely made by a defendant. {¶ 4} "Crim.R. 12(E) provides, in pertinent part, that '[w]here factual issues are involved in determining a motion, the court shall state its essential findings on the record.' 'A trial court must, upon the defendant's request, state essential findings of fact in support of its denial of a motion to discharge for failure to comply with the speedy trial provisions of R.C. 2945.71.' Bryan v. Knapp (1986), 21 Ohio St.3d 64, 65, 21 OBR 363, 364, 488 N.E.2d 142, 143. But for a court to have a duty to issue findings of fact, there must be a request from the defendant. No request for such findings was made by Brown's trial counsel. In State v. Benner (1988), 40 Ohio St.3d 301, 317-318, 533 N.E.2d 701, 718, this court stated the following: {¶ 5} " '[I]n order to invoke the rule [Crim.R. 12(E)], the defendant must request that the court state its essential findings of fact in support of its denial of a 4 motion. See Bryan v. Knapp (1986), 21 Ohio St.3d 64, 21 OBR 363, 488 N.E.2d 142.' " State v. Brown, 64 Ohio St.3d 476, 1992-Ohio-96, 597 N.E.2d 97, at 481. {¶ 6} In the case sub judice, Mack has failed to demonstrate that a request for findings of fact was made in the underlying criminal action of State v. Mack, Cuyahoga County Court of Common Pleas Case No. CR-518304. In fact, the docket in State v. Mack, supra, fails to disclose that any motion to discharge for failure to comply with the speedy trial provisions of R.C. 2945.71 was ever filed. Thus, Mack has failed to state a claim that Judge Ambrose possesses any duty to issue findings of fact. {¶ 7} Accordingly, we grant Judge Ambrose s motion for summary judgment. Costs to Mack. It is further ordered that the Clerk of the Eighth District Court of Appeals serve notice of this judgment upon all parties as mandated by Civ.R. 58(B). Writ denied. KENNETH A. ROCCO, PRESIDING JUDGE CHRISTINE T. MCMONAGLE, J., and JAMES J. SWEENEY, J., CONCUR

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