[Cite as State ex rel. Rossiter v. Batchelor, 2018-Ohio-729.]


                                         COURT OF APPEALS
                                     COSHOCTON COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE EX REL., BRIAN A. ROSSITER                         :      JUDGES:
                                                         :      Hon. W. Scott Gwin, P.J.
        Relator                                          :      Hon. Craig R. Baldwin, J.
                                                         :      Hon. Earle E. Wise, J.
-vs-                                                     :
                                                         :
CURRENT JUDGE OR IN THE                                  :      Case No. 2017CA0013
ALTERNATIVE HONORABLE ROBERT                             :
J. BATCHELOR JUDGE COURT OF                              :
COMMON PLEAS COSHOCTON                                   :
COUNTY                                                   :
                                                         :
        Respondent                                       :      OPINION



CHARACTER OF PROCEEDING:                                        Writ of Mandamus




JUDGMENT:                                                       Dismissed




DATE OF JUDGMENT:                                               February 26, 2018



APPEARANCES:

For Relator                                                     For Respondent

BRIAN A. ROSSITER, pro se                                       JASON W. GIVEN
# A707864                                                       Coshocton County Prosecuting Attorney
Warren Correctional Institution                                 318 Chestnut Street
P.O. Box 120                                                    Coshocton, OHio 43812
Lebanon, Ohio 45036
Coshocton County, Case No. 2017CA0013                                                2

Baldwin, J.

       {¶1}    Relator, Brian A. Rossiter, has filed a complaint for writ of mandamus

requesting this Court order Respondent to issue a ruling on “Relator’s motion for new trial

pursuant to newly discovered evidence.”

       {¶2}    Respondent has filed a motion to dismiss for failure to state a claim upon

which relief may be granted.

       {¶3}    Relator’s complaint does not include a copy of the motion nor does it include

a date the motion was filed. Coshocton County Case Number 15CR0111 is listed in the

caption of the complaint for writ of mandamus, therefore, this Court assumes the motion

for new trial was filed in Case Number 15CR0111.             The Court has reviewed the

Coshocton County Clerk of Court’s online docket and ordered Case Number 15CR0111

for review. The Court does not find a motion for new trial either on the docket or physically

located in the trial court file.

       {¶4}    The Ohio Supreme Court's Rules of Superintendence 40(A)(3) states that

“[a]ll motions shall be ruled upon within one hundred twenty days from the date the motion

was filed * * *.” The Ohio Supreme Court has held that this rule does not give rise to an

enforceable right in mandamus or procedendo. State ex rel. Culgan v. Collier, 135 Ohio

St.3d 436, 2013–Ohio–1762, 988 N.E.2d 564, ¶ 8.

       {¶5}    Relator has failed to plead sufficient information directing this Court to the

motion. Without a copy of the motion or the file stamp date, the Court cannot determine

whether Respondent has ruled on the motion or whether an excessive amount of time

has passed warranting a writ of mandamus.
Coshocton County, Case No. 2017CA0013                                            3


      {¶6}   Relator has failed to demonstrate the elements required for the issuance of

a writ of mandamus, therefore, the complaint is dismissed.

By: Baldwin, J.

W. Scott Gwin, P.J. and

Earle Wise, J. concur.
