[Cite as State v. Gassaway, 2019-Ohio-688.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P. J.
        Respondent                                Hon. John W. Wise, J.
                                                  Hon. Earle E. Wise, Jr., J.
-vs-
                                                  Case No. CT2018-0073
FRANKLIN L. GASSAWAY

        Petitioner                                OPINION




CHARACTER OF PROCEEDING:                       Writ of Procedendo



JUDGMENT:                                     Dismissed



DATE OF JUDGMENT ENTRY:                        February 25, 2019



APPEARANCES:

For Respondent                                For Petitioner

D. MICHAEL HADDOX                             FRANKLIN GASSAWAY
PROSECUTING ATTORNEY                          PRO SE
GERALD V. ANDERSON II                         BELMONT CORR. INSTITUTION
ASSISTANT PROSECUTOR                          68518 Bannock Road
27 North 5th Street, Suite 201                St. Clairsville, Ohio 43950
Zanesville, Ohio 43701
Muskingum County, Case No. CT2018-0073                                                     2

Wise, John, J.

      {¶1}   Petitioner Franklin Gassaway has filed a “Writ and Motion for Procedendo.”

The State of Ohio has filed a motion to dismiss. Attached to the motion to dismiss is a

copy of the order from the trial court denying Petitioner’s motion for transcript at state

expense.

      {¶2}   The crux of the petition is a request for this Court to order the Court of

Common Pleas to provide Petitioner with copies of pleadings, as well as a transcript at

state expense.

      {¶3}   The caption of the petition before us lists the State of Ohio as the Plaintiff,

and Franklin Gassaway as the Defendant. Gassaway is not the proper defendant in this

case nor is the State of Ohio the Plaintiff. Petitioner has failed to name a proper

respondent for an action which requests a writ of procedendo to issue.

      {¶4}   The Supreme Court has noted, “The writ of procedendo is merely an order

from a court of superior jurisdiction to one of inferior jurisdiction to proceed to judgment.

It does not in any case attempt to control the inferior court as to what that judgment

should be.” State ex rel. Davey v. Owen, 133 Ohio St. 96, *106, 12 N.E.2d 144, *149

(1937).

      {¶5}   A writ of procedendo is proper when a court has refused to enter judgment

or has unnecessarily delayed proceeding to judgment. State ex rel. Crandall, Pheils &

Wisniewski v. DeCessna, 73 Ohio St.3d 180, 184, 652 N.E.2d 742 (1995).

      {¶6}   In this case, Petitioner has not averred that the trial court has refused to

enter judgment.
Muskingum County, Case No. CT2018-0073                                                   3


       {¶7}   Finally, Petitioner failed to comply with the requirements of R.C. 2969.25(A)

which requires, “[a]t the time that an inmate commences a civil action or appeal against

a government entity or employee, the inmate shall file with the court an affidavit that

contains a description of each civil action or appeal of a civil action that the inmate has

filed in the previous five years in any state or federal court.”

       {¶8}   Because Petitioner was not named a proper plaintiff or defendant, has not

alleged any facts which would support a claim in procedendo, and has not complied with

the requirements of R.C. 2969.25(A), the petition is dismissed.


By: Wise, John, J.

Hoffman, P. J., and

Wise, Earle, J., concur.



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