COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71865 : : STATE OF OHIO EX REL. : PETITION FOR WRIT OF DAVID SLIMAN : MANDAMUS : Relator : : MOTION NO. 80171 -vs- : : LINNDALE POLICE DEPARTMENT, ET AL. : : Respondent : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 20, 1997 JUDGMENT: DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Relator: For Respondent: DAVID SLIMAN, Pro Se JAMES M. DUBELKO, No. 281-179 Village of Linndale Solicitor Grafton Correctional Institution 23823 Lorain Road, Suite 200 2500 So. Avon-Belden Road North Olmsted, Ohio 4400 Grafton, Ohio 44044 -2- JAMES D. SWEENEY, C.J.: On January 7, 1997, the relator, David Sliman, commenced this mandamus action against the respondents, the Linndale Police Department and Linndale Mayor Slusher, to compel them to dismiss a pending D.U.I. charge against him in Linndale Mayor's court (Case No. L-099692) and its corresponding detainer. On January 24, 1997, the respondents moved to dismiss on the grounds of mootness; attached to the motion were papers purporting to cancel the detainer. For the following reasons, this court sua sponte dismisses the mandamus action and denies the motion to dismiss. The gravamen of Mr. Sliman's complaint is that he has been imprisoned, and since 1993 he has petitioned the Linndale court to resolve a D.U.I. charge pending against him by dismissing the complaint or trying the charge. He avers that he initially invoked R.C. 2945.71, the speedy trial act, and R.C. 2945.17, the right to jury trial act. When this was unsuccessful, he alleges he invoked R.C. 2941.401, request for trial on pending charges by a prisoner. However, Mr. Sliman's petition for mandamus is fatally defective. It fails to comply with Loc. App. R. 8(B)(1), which requires that petitions in original actions "must be supported by an affidavit from the plaintiff or relator specifying the details of the claim." State ex rel. Wilson v. Calabrese (Jan. 18, 1996), Cuyahoga App. -3- No. 70077, unreported. Moreover, Mr. Sliman does not establish that he has complied with R.C. 2941.401. First, the February 8, 1996 request pursuant R.C. 2941.401, which Mr. Sliman avers is attached as an exhibit to his mandamus petition, is not attached. Second, R.C. 2941.401 requires that upon a proper request, a prisoner must be brought to trial within 180 days of the request, or "no court any longer has jurisdiction thereof, the indictment, information or complaint is void, and the court shall enter an order dismissing the action with prejudice." However, that proper request must be in writing and accompanied by a certificate from the warden having custody of the prisoner stating the prisoner's term of commitment, the time served and remaining to be served, the amount of good time earned, the time of parole eligibility and any decisions of the adult parole authority relating to the prisoner. Additionally, the prisoner must give the written request for trial to the warden who then must send it to the prosecuting attorney and court by registered or certified mail, return receipt requested. Mr. Sliman has not adequately alleged, so as to persuade this court, that he has fulfilled the requisite procedures of R.C. 2941.401. The requisites for mandamus are well established: the relator must establish (1) that he has a clear legal right to the relief requested; (2) that the respondent has clear legal duty to perform the requested relief; and (3) that there is no adequate remedy at law. State ex rel. Ney v. Niehuas (1987), 33 Ohio St.3d 118, 515 N.E.2d 914. Moreover, "the issuance of a writ of mandamus rests, -4- to a considerable extent at least, within the sound discretion of the court ***." State ex rel. Pressley v. Industrial Commission of Ohio (1967), 11 Ohio St.2d 141, 161, 228 N.E.2d 631. "A court exercising the extraordinary power of mandamus will take into consideration the facts and circumstances existing at the time it determines whether to issue a peremptory writ. Among the facts and circumstances which the court will consider are the applicant's rights, the interests of third persons, the importance or unimpor- tance of the case, the applicant's conduct, the equity and justice of the relator's case, public policy and the public's interest ***" 11 Ohio St.2d at 162. See also, State ex rel. Bennett v. Lime (1978), 55 Ohio St.2d 62, 378 N.E.2d 152 and State ex rel. Mettler v. Stratton (1941), 139 Ohio St. 86, 38 N.E.2d 393. Moreover, mandamus is not to be issued in doubtful cases or when the law is not clear. State ex rel. Shafer v. Ohio Turnpike Commission (1953), 159 Ohio St. 581, 113 N.E.2d 14; State ex rel. Connole v. Cleveland Board of Education (1993), 87 Ohio App.3d 43, 621 N.E.2d 850; State ex rel. Goldsberry v. Weir (1978), 60 Ohio App.2d 149, 395 N.E.2d 901; State ex rel. Dayton-Oakwood Press v. Dissinger (1940), 32 Ohio Law Abs. 308. As the Supreme Court of Ohio stated in State ex rel. Taylor v. Glasser (1977), 50 Ohio St.2d 165, 166, 364 N.E.2d 1: "Mandamus and prohibition are extraordinary remedies, to be issued with great caution and discretion and only when the way is clear." Accordingly, because Mr. Sliman did not comply with Loc. R. 8(B)(1) and because this court doubts whether Mr. Sliman complied -5- with R.C. 2941.401, this court, sua sponte, dismisses this mandamus action. The court also notes that for this action to be moot, the underlying pending charge must be resolved under R.C. 2941.401 as compared to dismissing only the detainer. Relator to pay costs. PATRICIA A. BLACKMON, J., CONCURS .