[Cite as State ex rel. Lowe v. Callahan, 136 Ohio St.3d 324, 2013-Ohio-3689.]




  [THE STATE EX REL.] LOWE, APPELLANT, v. CALLAHAN, JUDGE, APPELLEE.
 [Cite as State ex rel. Lowe v. Callahan, 136 Ohio St.3d 324, 2013-Ohio-3689.]
Court of appeals’ judgment dismissing complaint for writ of procedendo
        affirmed—Procedendo will not compel the performance of a duty that has
        already been performed.
  (No. 2013-0441—Submitted August 21, 2013—Decided September 4, 2013.)
        APPEAL from the Court of Appeals for Summit County, No. 26758.
                                ____________________
        Per Curiam.
        {¶ 1} We affirm the judgment of the court of appeals denying relief to
appellant, Dennis Ray Lowe, on his complaint for a writ of procedendo. Lowe
seeks to compel appellee, Judge Lynne Callahan, to issue a ruling on his motion
in arrest of judgment. He alleges that he filed his motion on August 10, 2012, and
that Judge Callahan has not ruled on it.
        {¶ 2} Judge Callahan moved the court of appeals to dismiss the
complaint, arguing that the action was moot because she had ruled on Lowe’s
motion on August 22, 2012. The Ninth District Court of Appeals granted the
motion. Lowe appealed as of right.
        {¶ 3} In his first proposition of law, Lowe argues that Judge Callahan’s
ruling on August 22, 2012, was on the wrong issue. Lowe claims that his motion
dealt with a structural-error violation, not a speedy-trial violation. He claims that
the judge’s failure to rule on the correct violation violates his due-process rights.
In his second proposition of law, he likewise argues that the Ninth District should
not have dismissed his complaint for a writ of procedendo, because the judge did
not rule on his structural-error challenge.
                            SUPREME COURT OF OHIO




       {¶ 4} As the court below correctly reasoned, relief is unwarranted here
because procedendo will not compel the performance of a duty that has already
been performed. State ex rel. Fontanella v. Kontos, 117 Ohio St.3d 514, 2008-
Ohio-1431, 885 N.E.2d 220, ¶ 6, citing State ex rel. Howard v. Doneghy, 102
Ohio St.3d 355, 2004-Ohio-3207, 810 N.E.2d 958, ¶ 6. Judge Callahan ruled on
Lowe’s motion on August 22, 2012, only 12 days after he had filed it. Therefore,
the judge has performed the duty that the writ of procedendo seeks to compel.
       {¶ 5} Lowe’s argument is not that the judge failed to rule on his motion
but that she addressed the wrong issue in her ruling. That argument should have
been raised in an appeal of the ruling rather than in an action for a writ of
procedendo.
       {¶ 6} Based on the foregoing, we affirm the judgment of the court of
appeals.
                                                              Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                            ____________________
       Dennis Ray Lowe, pro se.
       Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Richard
S. Kasay, Assistant Prosecuting Attorney, for appellee.
                          ________________________




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