Opinion
No. 81-1147
Decided June 23, 1982.
Procedendo — Complaint dismissed, when — No clear legal right thereto shown.
APPEAL from the Court of Appeals for Summit County.
Appellant, Garland L. Batten, is an inmate at the Marion Correctional Facility. On June 28, 1977, appellant was placed on probation for two years. One of the conditions of appellant's probation was that he "not own, possess or have any contact with firearms." On September 11, 1978, well within the two-year period, appellant pled guilty to charges of aggravated assault by use of a pistol. Appellant was represented by counsel at this proceeding. Thereafter, in a separate proceeding and while being represented by different counsel, appellant pled guilty to violating the terms of his probation. Appellee, Judge John W. Reece, presided in both the assault and probation revocation proceedings. No appeal was taken from any of the orders entered in the foregoing cases.
On December 14, 1979, appellant filed a petition for post-conviction relief in the Court of Common Pleas of Summit County. Appellee, as the judge to whom the case was referred for disposition, dismissed the petition. Appellant sought review of this decision in the Court of Appeals, which affirmed. Appellant did not prosecute a further appeal therefrom to this court.
On December 30, 1980, appellant filed a second petition for post-conviction relief in the Court of Common Pleas of Summit County and, in conjunction therewith, on January 5, 1981, made a motion for discovery and inspection, purportedly pursuant to Crim. R. 16. Again, the case was referred to appellee for decision. On January 21, 1981, appellee dismissed the petition for post-conviction relief. On January 30, 1981, appellant filed a motion for reconsideration of the court's order of January 21, 1981.
There is no evidence of record that appellee has acted upon the motion for reconsideration or that appellant prosecuted an appeal from the order of January 21st.
On March 9, 1981, appellant filed a complaint for writ of procedendo in the Court of Appeals for Summit County. That court dismissed the complaint for failure to state a claim upon which relief can be granted. The cause is now before this court upon an appeal as of right.
Mr. Garland L. Batten, pro se. Mr. Lynn C. Slaby, prosecuting attorney, and Mr. William E. Schultz, for appellee.
"Procedendo is a high prerogative writ of an extraordinary nature. It is an order from a court of superior jurisdiction to proceed to judgment * * *. Procedendo does not lie where * * * there is no clear legal right to such relief." State, ex rel. Ratliff, v. Marshall (1972), 30 Ohio St.2d 101, 102; State, ex rel. St. Sava, v. Riley (1973), 36 Ohio St.2d 171, 174.
Appellee's order of January 21, 1981, constitutes a final order or judgment within the meaning of R.C. 2505.02.
In part, R.C. 2505.02 provides: "An order affecting a substantial right in an action which in effect determines the action * * * is a final order which may be reviewed * * *."
Appellant argues, however, that appellee should be ordered to proceed to a determination of his motion for reconsideration. In order to give credence to appellant's argument, we would be required to elevate the motion for reconsideration to the status of a motion for new trial. This, in fact, is precisely what appellant argues should be done. We decline to do so. See, e.g., Pitts v. Dept. of Transportation (1981), 67 Ohio St.2d 378.
However, even had the court considered appellant's motion as one for a new trial, his cause is not aided thereby. There was no "trial" in this cause. Without a trial, a motion for a new trial is a nullity. Cf. L.A. D. v. Bd. of Commrs. (1981), 67 Ohio St.2d 384.
A review of appellant's complaint discloses that he can prove no clear legal right to the relief requested. Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.