COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74891 STATE OF OHIO, EX REL. : PETITION FOR WRIT OF FRANK HUSSING : MANDAMUS : Relator : MOTION NO. 98765 : vs. : JOURNAL ENTRY AND OPINION : COURT OF COMMON PLEAS : CUYAHOGA COUNTY, OHIO : : Respondent : : DATE OF JOURNALIZATION : OCTOBER 1, 1998 JUDGMENT : WRIT DISMISSED. APPEARANCES: For Relator : FRANK HUSSING, Pro Se No. 256-898 P. O. Box 45699 Lucasville, Ohio 45699-0001 For Respondent : STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor LISA REITZ WILLIAMSON, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, A.J.: On July 17, 1998, the relator, Frank Hussing, commenced this mandamus action against the respondent, the Clerk of Courts of the Cuyahoga County Common Pleas Court, to compel the clerk to state the correct amount of jail time credit in the underlying case, State of Ohio v. Frank Hussing, Cuyahoga County Common Pleas Court Case No. CR-266705. On August 12, 1998, the respondent, through the Cuyahoga County Prosecutor, moved for summary judgment because the matter is moot and because the named respondent has no duty to perform the requested relief. Mr. Hussing never filed a response. For the following reasons, this court grants the respondent's motion for summary judgment. In May 1992, Mr. Hussing was convicted of carrying a concealed weapon with violence specifications and having a weapon while under disability with firearm and violence specifications. The docket, which is attached and incorporated, shows that the trial court sentenced him to three to ten years on count one and one and one- half years to five years plus three years for the gun specification on count two, with the two sentences to run concurrent. On August 2, 1996, Mr. Hussing moved for jail time credit, and on March 27, 1997, the trial court stated that he had 155 days of such credit. On March 30, 1998, Mr. Hussing filed a Motion for nunc pro tunc order amending the judgment and entry to show the correct number of days to be credited for jail time credit. Mr. Hussing argued that he was entitled to 159 days of credit, because he was incarcerated from December 16, 1991 until May 20, 1992, when -3- he was transported to the Reception Center of the Ohio Department of Rehabilitation and Corrections. On April 13, 1998, the trial court issued the following entry: Motion of the defendant to correct number of days for jail credit is denied. Jail time accurate as stated. 1Apparently, Mr. Hussing did not receive this journal entry,2 because his next action was to commence this mandamus case. The requisites for mandamus are well established: (1) the relator must have a clear legal right to the requested relief, (2) the respondent must have a clear legal duty to perform the requested relief, and (3) there must be no adequate remedy at law. Mandamus may not control judicial discretion, even if that discretion is grossly abused. State ex rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914. Furthermore, mandamus is not a substitute for appeal. State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 631 N.E.2d 119; State ex rel. Daggett v. Gessman (1973), 34 Ohio St.2d 55, 295 N.E.2d 659; and State ex rel. Pressley v. Industrial Commission of Ohio (1967), 11 Ohio St.2d 141, 228 N.E.2d 631, Paragraph Three of the Syllabus. Furthermore, if the relator had an adequate remedy, regardless of whether it was used, relief in mandamus is precluded. State ex rel. Tran v. McGrath(1997), 78 Ohio St.3d 45, 676 N.E.2d 108, and State ex rel. Boardwalk Shopping Center, Inc. v. Court of Appeals for Cuyahoga 1 The number of days from December 17, 1991, through May 19, 1992, inclusive, is 155. 2 The docket does not contain the usual notations indicating that the entry had been mailed. -4- County (1990), 56 Ohio St.3d 33, 564 N.E.2d 86. In the present case, Mr. Hussing is not entitled to a writ of mandamus. First, the named respondent, the Clerk of Courts for the Cuyahoga County Common Pleas Court, does not have the duty to provide or state jail time credit. That duty belongs to the trial court judge. Former Crim. R. 32.2(D) provided in pertinent part that the court shall forward a statement of the number of days confinement which the defendant is entitled by law to have credited to his minimum and maximum sentence. In State ex rel. Corder v. Wilson (1991), 68 Ohio App.3d 567, 572, 589 N.E.2d 113, the court ruled that the sentencing court makes the determination as to the amount of time served by the prisoner before being sentenced. See also, R.C. 2949.12 which provides that [t]he sheriff shall *** present the managing officer with a copy of the convicted felon's sentence that *** pursuant to section 2967.191 of the Revised Code, specifies the total number of days, if any, that the felon was confined, for any reason, prior to conviction and sentence. State v. Smith (1992), 71 Ohio App.3d 302, 593 N.e.2d 402. The ultimate relief Mr. Hussing is seeking, a statement of jail time credit, can come from only the trial judge; the clerk does not have the power to issue orders. Thus, whether Mr. Hussing miscaptioned his petition or is demanding improper relief from the clerk, his petition for mandamus is fatally defective. Moreover, to the extent that Mr. Hussing is seeking a ruling on his March 30, 1998 motion for jail time credit, the matter is moot. The court ruled on his motion. -5- To the extent that Mr. Hussing is seeking a correct statement of the amount of jail time credit to which he is entitled, he has or had an adequate remedy at law which precludes the issuance of mandamus. The trial court fulfills its duty by stating in a journal entry an amount of jail time credit. After the court has fulfilled its duty, the defendant's remedy is by way of appeal, not mandamus. Corder; State ex rel. Johnson v. O'Donnell(Oct. 4, 1994), Cuyahoga App. No. 67783, unreported, and State ex rel. Stanton v. Sutula (July 16, 1998), Cuyahoga App. No. 74511, unreported. Accordingly, the respondent's motion for summary judgment is granted, and the case is dismissed. Costs assessed against relator. JAMES M. PORTER, J., CONCURS. .