Opinion

State ex rel. Hazel v. Bender

  • 129 Ohio St. 3d 496
  • 2011 Ohio 4197
Court
Ohio Supreme Court
Filed
Aug 30, 2011
Status
Published
On the bench
O'Connor, Pfeifer, Stratton, O'Donnell, Lanzinger, Cupp, Brown
Cited by
7 cases
Authority
More cited than 83.2%

The opinion

[Cite as State ex rel. Hazel v. Bender, 129 Ohio St.3d 496, 2011-Ohio-4197.]

THE STATE EX REL. HAZEL, APPELLANT, v. BENDER, JUDGE, APPELLEE.

[Cite as State ex rel. Hazel v. Bender, 129 Ohio St.3d 496, 2011-Ohio-4197.]

Procedendo — Writ of procedendo will not issue to compel the performance of a

duty that has already been performed — Court of appeals’ denial of writ

affirmed.

(No. 2011-0531 — Submitted August 8, 2011 — Decided August 30, 2011.)

APPEAL from the Court of Appeals for Franklin County,

No. 10AP-435, 2011-Ohio-1027.

__________________

Per Curiam.

{¶ 1} We affirm the judgment of the court of appeals denying the request

of appellant, Corey Hazel, for a writ of procedendo,1 to compel appellee, Franklin

County Court of Common Pleas Judge John F. Bender, to resentence him in

accordance with the court’s decision in State v. Hazel (Mar. 31, 2010), Franklin

App. Nos. 09AP-1132, 09AP-1156, 09AP-1133, and 09AP-1157. Judge Bender

has resentenced Hazel. The judge’s performance of the requested act rendered

Hazel’s procedendo claim moot. State ex rel. Howard v. Skow, 102 Ohio St.3d

423, 2004-Ohio-3652, 811 N.E.2d 1128, ¶ 9.

{¶ 2} Hazel’s claim on appeal that he was entitled to a writ of

procedendo to compel his immediate release from prison because Judge Bender

had unnecessarily delayed resentencing him lacks merit because no unnecessary

delay occurred. Moreover, habeas corpus, rather than procedendo, is the proper

action to seek release from prison. See generally State ex rel. Nelson v. Griffin,

103 Ohio St.3d 167, 2004-Ohio-4754, 814 N.E.2d 866, ¶ 5 (“habeas corpus,

1. The court of appeals also denied Hazel’s request for a writ of prohibition, but he does not

contest that ruling in his propositions of law.

SUPREME COURT OF OHIO

rather than mandamus or prohibition, is the proper action to seek” release from

prison).

Judgment affirmed.

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,

LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.

__________________

Corey Hazel, pro se.

______________________

2

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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