[Cite as State ex rel. Smoot v. Favreau, 2016-Ohio-7929.]


                                        COURT OF APPEALS
                                      MORGAN COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE EX REL. JASON SMOOT                                   JUDGES:
                                                            Hon. W. Scott Gwin, P.J.
        Relator                                             Hon. William B. Hoffman, J.
                                                            Hon. Craig R. Baldwin, J.
-vs-
                                                            Case No. 16AP0004
JUDGE D.W. FAVREAU

        Respondent                                          OPINION




CHARACTER OF PROCEEDING:                                Writ of Procedendo


JUDGMENT:                                               Issued


DATE OF JUDGMENT ENTRY:                                 November 28, 2016


APPEARANCES:


For Relator                                             For Respondent


JASON SMOOT (PRO SE) #A715-376                          CINDY M. O'NEIL
Noble Correctional Institution                          Assistant Prosecuting Attorney
15708 McConnelsville Road                               19 East Main Street
Caldwell, Ohio 43724                                    McConnelsville, Ohio 43756
Morgan County, Case No. 16AP0004                                                              2

Hoffman, J.
      {¶1} Relator Jason Smoot has filed a Petition for Writ of Procedendo asking this


Court to order the trial court to rule on a Petition for Post-Conviction Relief filed by Relator


on August 31, 2015. Relator initiated an appeal of his conviction and sentence August


14, 2015. Respondent has filed a motion to dismiss arguing he lacked jurisdiction to rule


on the Petition for Post-Conviction Relief because the appeal was pending.


       {¶2}   To be entitled to a writ of procedendo, “a relator must establish a clear legal


right to require the court to proceed, a clear legal duty on the part of the court to proceed,


and the lack of an adequate remedy in the ordinary course of law.” Miley, supra, at 65,


citing State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas (1995), 72 Ohio


St.3d 461, 462.


       {¶3}   “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).
Morgan County, Case No. 16AP0004                                                             3


       {¶4}   Revised Code Section 2953.21 governs petitions for post-conviction relief


and provides in relevant part, “(C) The court shall consider a petition that is timely filed


under division (A)(2) of this section even if a direct appeal of the judgment is pending.”


R.C. 2953.21(C).


       {¶5}   Relator was sentenced on April 29, 2015. The petition was filed within three


hundred sixty five days of the expiration of time for filing a notice of appeal, therefore, the


petition was timely on the date it was filed.


       {¶6}   Because Relator had filed a timely petition for post-conviction relief, the trial


court did have jurisdiction to rule on the petition.


       {¶7}   “Sup.R. 40(A)(3) imposes on trial courts a duty to rule on motions within 120


days. Although the Rules of Superintendence do not provide litigants with a right to


enforce Sup.R. 40, the rule does guide this court in determining whether a trial court has


unduly delayed ruling on a motion for purposes of ruling on a request for an extraordinary


writ. A court that takes more than 120 days to rule on a motion risks unduly delaying the


case. . . That is not to say that claims in mandamus and/or procedendo automatically lie


simply because a motion remains pending longer than 120 days. Other factors may
Morgan County, Case No. 16AP0004                                                              4

dictate that a trial court take more time to rule on a motion.” State ex rel. Culgan v. Collier,


135 Ohio St.3d 436, 2013-Ohio-1762, 988 N.E.2d 564, ¶ 12.


       {¶8}   In the instant case, Respondent has offered no other factors in support of


the delay. For this reason, the requested writ of procedendo will issue. Respondent shall


forthwith rule upon Relator’s motion filed April 29, 2015.1



By: Hoffman, J.

Gwin, P.J. and

Baldwin, J. concur




1
 We reversed Relator’s conviction and sentence in his direct appeal which was decided
while this case was pending. Our decision in Relator’s appeal reversing and remanding
the case because the plea was not properly taken does not alter our holding in this case.
The motion for post-conviction relief remains pending without a ruling. The only impact
the reversal has on the motion is Respondent’s disposition of the motion may now be
different than had the motion be ruled upon prior to our reversal.
