IN THE SUPREME COURT OF OHIO PETITION FOR A WRIT OF MANDAMUS

Transcription

1 IN THE SUPREME COURT OF OHIO STATE OF OHIO ex rel., JOHN WALTER SMILEY, JR. # S.R. 104 North P.O. BOX 5500 CHILLICOTHE, OHIO Relator, JUDGE G. JACK DAVIS and/or IN ORIGINAL ACTION HIS SUCCESSOR COURT OF COMMON PLEAS MANDAMUS MONTGOMERY COUNTY, OHIO 41 NORTH PERRY STREET DAYTON, OHIO Respondent. JUN U 2 20U3 PETITION FOR A WRIT OF MANDAMUS T SUPREME COURT OF OHIO TO THE SUPREME COURT OF OHIO: The Petition of John Walter Smiley Jr., alleges the following: 1. This Court has jurisdiction under Article IV 2(B)(1) of the Ohio Constitution and pursuant to R.C Respondent, Judge G. Jack Davis and/or his successor, is one of the Common Pleas Judges, as to the propriety of the act or the expediency of performing the act, Mandamus lies to compel an officer to act in accordance which required construction of statute or show cause to the contrary of a present existing duty as to which there is default. 3. Relator's case was originally heard in the Court of Common Pleas, Montgomery County, Ohio, being Case No. 04CR-904, Presided by Judge G. Jack Davis, 4. Where there is clear legal right to relief prayed for that Respondent is under a clear legal duty to perform the requested act, and that Relator has no plain and adequate remedy at law. Mandamus will lie to the act to perform it. State ex rel., Westchester Estates 61 O.St.2d 42.

2 5. Relator, on May 22, 2007, filed a Motion for Jail-Time Credit pursuant to O.R.C (A)(B). At no time since the filing of the motion has the State filed a response or objection in answer to the relief sought. It has been more than twelve (12) months since the filing of Relator's motion and submission to the Montgomery County Court of Common Pleas. Judge G. Jack Davis, his unknown successor, has not ruled upon Relator's motion. 6. Relator, on December 21, 2007, filed a Motion for Jail- Time Credit pursuant to O.R.C (A)(B). At no time since the motion's filing has the State filed a response or objection in answer to the relief sought. It has been more than five (5) months since the filing of Relator's motion and submission to the Montgomery County Court of Common Pleas. Judge G. Jack Davis, his unknown successor, has not ruled upon Relator's motion. 7. Without the Respondent's, Montgomery County Court of Common Pleas, Judgement Entry, Relator has no plain or adequate remedy at law to pursue further, minus a final appealable order. An issuance for this Writ of Mandamus, issued by this Honorable Court is an enforcement required by law of Judge G. Jack Davis or his successor, whose duty is to rule on pleadings. See State ex rel., Van Curran v. Adult Parole Authority, 45 O.St.2d 298, and State ex rel., Pressky v. Industrial Comm'n., 11 O.St.2d Mandamus does not lie to control the Court's discretion unless it is clearly shown that the Court's refusal to perform the desired act is an abuse of discretion. Board of Education v. State ex rel Wikkham, 80 O.St Relator states that this delay and refusal to rule, is the continuation of the Respondent's abuse of power and underlying prejudice and bias that has surrounded this whole case. This delay has been prejudicial because the Relator has been prevented from being released from prison for Franklin County Common Pleas. Court has granted Relator Judicial Release on February 15, What this Honorable Court must construe is whether Relator has presented a claim to Respondent, G. Jack Davis or his successor, and distinguished why Respondent has offered no

3 explanation as to the Court's lack of a ruling, and the excessive delay from rendering a ruling on Relator's motion. Relator is being prejudiced by the Court's ministerial act, which Respondent, Judge G. Jack Davis or his successor, is obligated to perform in obediaence of the law without the exercise of judgement, as to the material issues of Relator's Petition, to discharge the Court's duty required by the Court of Common Pleas, by law. 10. Relator states that on or about July 1, 2007 and on or about March 24, 2008 he submitted to the Montgomery County Court of Common Pleas, Judge G. Jack Davis or his successor, a request for a Docket Summary after original submissions were made to the Montgomery County Clerk of Courts. On or about July 10, 2007 :i:r. and May 5, 2008 the requests were denied. The Montgomery Counhy Common Pleas Court is only granting Relator Jail-Time Credit for the time he was physically present in the Montgomery County Jail and no credit is being granted for time spent in another county jail in lieu of bail for Montgomery County. Relator was denied release from Kenton COunty, Kentucky Jail as the result of the Montgomery County Detainer. Further, bond was not reinstated in Franklin County, Ohio after returning to Franklin County Jail from a Montgomery County Court appearance. 11. Relator seeks relief from this Honorable Court, upon his petition request in the Supreme_r: Court of Ohio, issue a Mandamus, or an order directing the Court of Common Pleas Judge, G. Jack Davis or his successor, to show cause for the Court's delay. Relator has a clear legal right to Mandamus and Respondent, Judge G. Jack Davis or his successor, is under clear duty to perform the requested act. Respectfully submitted, W. Smiley ljr.

4 INMATE"S AFFIDAVIT OF PRIOR ACTIONS I, John W. Smiley Jr., pursuant to O.R.C , do hereby solemnly affirm that: In the past five (5) years, I have filed the following Civil Action or Appeals of Civil Actions in State and/or Federal Courts. During the last five (5) years, I have filed the following Civil Actions: 1. No Actions Filed All of these actions have been discharged. I do hereby declare that all the information contained in this affidavit, pursuant to O.R.C , for the above listed civil actions, is true to the best of my knowledge and correct as listed. May, SWORN TO AND SUBSCRIBED in my presence this day of N11( CAMNISSM EXPIRES M0 DAY 2-3 YEAR a2 ( f

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