COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
                       COUNTY OF CUYAHOGA
                           NO. 75646
STATE OF OHIO, EX REL.        :    PETITION FOR WRIT OF
JAMES JACKSON                 :    MANDAMUS
                              :
               Relator        :    MOTION NO. 3748
                              :
          vs.                 :    JOURNAL ENTRY AND OPINION
                              :
GERALD FUERST, CLERK          :
COURT OF COMMON PLEAS         :
CUYAHOGA COUNTY, OHIO         :
                              :
               Respondent     :
                              :
DATE OF JOURNALIZATION   :    FEBRUARY 25, 1999
JUDGMENT                 :    WRIT DENIED.
APPEARANCES:
For Relator              :    JAMES JACKSON, Pro Se
                              No. 196-401
                              P. O. Box 57
                              Marion, Ohio 43301
For Respondent           :    WILLIAM D. MASON,
                                Cuyahoga County Prosecutor
                              RENEE L. SNOW, Assistant
                              Justice Center, Courts Tower
                              1200 Ontario Street
                              Cleveland, Ohio 44113
JAMES M. PORTER, A.J.:
     Relator avers that he is the defendant in State v.  Jackson,
Cuyahoga County Court of Common Pleas Case No. CR-208756.  Relator
                               -2-
complains that  respondent  clerk stamped  relator's   motion  to
perpetuate  evidence and  testimony via  Civ.R. 27"  ( motion  to
perpetuate ) as received for filing  rather than  filed.   Relator
asserts that the designation  received for filing  indicates that
the motion to perpetuate has not been filed.  Relator requests that
this court compel respondent to file the motion to perpetuate.
     Respondent has filed a motion to dismiss attached to which is
the affidavit of Mark Lime, Assistant Deputy in Charge of the Clerk
of Courts,  Criminal Division.    Mr. Lime  avers that  a  motion
received by mail is  stamped  received for  filing  and a  motion
received over the counter is stamped  filed.   Respondent  argues
that relator does not have a clear legal right to have his motion
stamped  filed.
     Sua sponte, we convert the motion to dismiss to a motion for
summary judgment because the motion relies on material outside the
pleading.   See Civ. R. 12(B), 56.  We also note that the  docket
reflects that the motion  to perpetuate was filed on October  26,
1998.  As a consequence, relator has received the relief which he
requested and this action is moot.
     Accordingly,  we  grant  respondent's  motion  for   summary
judgment.  Relator to pay costs.
     Writ denied.
ANN DYKE, J., CONCURS.
                              JAMES M. PORTER,
.