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            COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
                       COUNTY OF CUYAHOGA
                           NO. 76862
STATE OF OHIO, EX REL.        :    PETITION FOR WRIT OF MANDAMUS,
CARL A. NELSON, SR.           :    AND/OR PEREMPTORY WRIT,
                              :    ALTERNATIVELY PROCEDENDO
               Relator        :
                              :    MOTION NO. 10738
          vs.                 :
                              :    JOURNAL ENTRY AND OPINION
NANCY M. RUSSO, JUDDGE        :
COURT OF COMMON PLEAS         :
CUYAHOGA COUNTY, OHIO         :
                              :
               Respondent     :
                              :
DATE OF JOURNALIZATION   :    OCTOBER 21, 1999
JUDGMENT                 :    WRIT DENIED.
APPEARANCES:
For Relator              :    CARL A. NELSON, SR., Pro Se
                              No. 199-605
                              Marion Correctional Institution
                              P. O. Box 57
                              Marion, Ohio 43301-0057
For Respondent           :    WILLIAM D. MASON,
                                Cuyahoga County Prosecutor
                              GEORGE J. SADD, Assistant
                              Justice Center, Courts Tower
                              1200 Ontario Street
                              Cleveland, Ohio 44113
JAMES M. PORTER, A.J.:
     Relator requests that this court compel respondent judge  to
issue findings of fact and conclusions of law with respect to the
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petition for postconviction  relief filed by relator in State  v.
Nelson, Cuyahoga County Court of Common Pleas Case No. CR-212590 on
September 17, 1996.
     Respondent has filed a motion to dismiss attached to which is
a copy of the findings of  fact and conclusions of law issued  by
respondent and received for filing by the clerk on September  14,
1999.    Respondent  argues that  this  action  in  mandamus  is,
therefore, moot.  We agree.
     Relator requests, however, that we deny the motion to dismiss,
order respondent to vacate the findings of fact and conclusions of
law, and compel  Respondent to proceed to judgment in  accordance
with the law ***. Brief in Opposition to Motion to Dismiss, at 1.
 [M]andamus may not be utilized to control judicial discretion and
require a judge to  exercise his discretion in a certain  manner.
R.C. 2731.03; State ex rel. DeVille Photography, Inc. v. McCarroll
(1958), 167 Ohio St.  210.  Herein, mandamus  may not be used  to
order the respondent to grant judgment on behalf of the  relator.
State ex  rel. Tillimon v. Weiher  [(1992), 65 Ohio St.3d  468].
State ex rel. Douglas v. Fuerst (Dec. 30, 1996), Cuyahoga App. No.
71595, unreported.  Likewise, procedendo may not be used to compel
a court to rule in a certain way.  State ex rel. Frazer v. Ferreri
(July 2, 1996), Cuyahoga App. No. 70228, unreported, at 3  citing
State ex  rel. Sherrills v. Cuyahoga  Cty. Court of Common  Pleas
(1995), 72 Ohio St.3d 461, 462, 650 N.E.2d 899.  As a consequence,
relief in mandamus or procedendo would be inappropriate.
     Sua sponte, we convert the motion to dismiss to a motion for
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summary judgment because the motion relies on material outside the
pleading.  See Civ. R. 12(B), 56; State ex rel. Jackson v. Fuerst
(Feb. 25, 1999), Cuyahoga App. No. 75646, unreported.
     Accordingly, respondent's motion to dismiss, which has  been
converted to a motion for summary judgment, is granted.  Respondent
to pay costs.
     Writ denied.
ANN DYKE, J., CONCURS.
                              JAMES M. PORTER,
                              ADMINISTRATIVE JUDGE
.