[Cite as State ex rel. McCoy v. Heath, 2014-Ohio-4716.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO, EX REL.,                                      JUDGES:
MATTHEW WILLIAM MCCOY                                        Hon. William B. Hoffman, P.J.
                                                             Hon. Sheila G. Farmer, J.
        Relator                                              Hon. Patricia A. Delaney, J.

-vs-                                                         Case No. 2014CA00061

JUDGE TARYN L. HEATH
                                                             OPINION
        Respondent




CHARACTER OF PROCEEDING:                                  Writ of Mandamus


JUDGMENT:                                                 Dismissed


DATE OF JUDGMENT ENTRY:                                   October 20, 2014


APPEARANCES:


For Realtor                                               For Respondent

MATTHEW WILLIAM MCCOY                                     JOHN D. FERRERO, JR.
640-419                                                   Stark County Prosecuting Attorney
P.O. Box 8107
Mansfield, Ohio 44901                                     RONALD MARK CALDWELL
                                                          Assistant Prosecuting Attorney
                                                          Appellate Section
                                                          Stark County Prosecutor's Office
                                                          110 Central Plaza, South, Suite 510
                                                          Canton, Ohio 44702-1413
Stark County, Case No. 2014CA00061                                                    2

Hoffman, P.J.


       {¶1}   Relator, Matthew William McCoy, has filed a Complaint for Writ of

Mandamus requesting Respondent be ordered to rule on a motion filed in the trial court

on September 25, 2013. In that motion, Relator sought to have Respondent remove the

word “mandatory” from Relator’s sentence.

       {¶2}   Respondent has filed a motion to dismiss the complaint arguing the

complaint is now moot because on April 2, 2014 Respondent issued a Nunc Pro Tunc

sentencing entry which eliminates any reference to a mandatory sentence.

       {¶3}   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.

       {¶4}   However, the Supreme Court has held procedendo and mandamus will

not issue where the requested relief has been obtained, “Neither procedendo nor

mandamus will compel the performance of a duty that has already been performed.”

State ex rel. Kreps v. Christiansen (2000), 88 Ohio St.3d 313, 318, 725 N.E.2d 663,

668.
Stark County, Case No. 2014CA00061                                                  3


      {¶5}   Respondent has in essence now ruled on the September 25, 2013 motion

by granting the relief requested by Relator. For this reason, the motion to dismiss is

granted, and the instant petition is dismissed as moot.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur
