
    In re Singer.
    [Cite as In re Singer (1976), 45 Ohio St. 2d 130.]
    (No. 75-684
    Decided February 18, 1976.)
    
      
      'Messrs. Schwarts, Fisher, Spater, McNamara'S Marshall, Mr. Leonard J. Schwarts and Mr. Thomas R. McGuire, for appellant.
    
      Mr: Richard E. ' Bridwell, prosecuting attorney, Mr. Joseph A. Gormley and Mr. Warren B. Richardson, for appellees.
   Per Curiam.

Prior to a decision on the merits of this appeal of the denial of appellant’s petition for a writ of habeas corpus, this court must determine whether habeas corpus is the proper remedy to test appellant’s allegation that he was not tried within the period mandated by R. C. 2945:71: ' .

The record indicates that the appellant properly challenged the length of his incarceration, in lieu of bail, by way of motion pursuant to R. C. 2945.73. It is from the denial' of the motion for discharge that appellant brought this original action seeking a writ of habeas corpus.

This situation- has been before this court previously, and we have held, in paragraph two of the syllabus in In re Knight (1944), 144 Ohio St. 257, that:

“So long as an order of a trial court' overruling defendant’s motion for his discharge upon the failure of the state to cause him to be tried within the time limited by Section-13447-1, General Code [now R. C. 2945.71], remains uriréversed, such order is a valid and legal authority to the sheriff for retaining the prisoner in custody arid such order cannot be reviewed or reversed or the prisoner discharged by a proceeding in habeas corpus before another tribunal. (Ex Parte McGehah, 22 Ohio St., 442 approved and followed:) ”

The rationale behind this decision was stated in Mc-Gehdn to lie in the fact that a court inay not in an ex parte proceeding' review and reverse thé judgment of another court. 'The statutes involved in McGehan operated'to discharge:the defendant from prosecution and, in effect, to acquit the defendant, putting an end to; all proceedings. The court stated that the effect of granting a writ of habeas corpus would be to render final judgment while'the cause was still pending in the court below. Likewise, this court, in Knight, at page 264, stated that habeas corpus was not a proper remedy.'to test the validity of the denial o.f a motion for discharge, the remedy being by way of appeal....

The recent decision of this court, in State, ex rel. Racine, v. Dull,(1975), 44 Ohio St. 2d 72, supports this principle. In Racine, supra, we affirmed a Court of Appeals’ decision .granting a: motion to dismiss relator’s complaint in mandamus seeking that the trial court discharge him pursuant to R. C. 2945.71 et seq. We held that the relator had an adequate .remedy by way of appeal, citing State, ex rel. Woodbury, v. Spitler (1974), 40 Ohio St. 2d 1, 3, fallowed in State, ex rel. Wentz, v. Correll (Í975), 41 Ohio St. 2d 101,: for 4he proposition that:

“ * *. .Where an action is pending and undetermined in a lower court of competent jurisdiction,, and where; there is.,otherwise an adequate remedy by way of,appeal, this court has no authority to determine what judgment should be-rendered by the lower court.”

..... In.the instant case, appellant has an adequate remedy by way of appeal. Additionally,, delay in the preliminary hearing; or.of. the trial itself cannot .ordinarily be urged as a' ground for relief in habeas corpus after the accused, has pleaded guilty or been convicted of the crime charged* since the delay,.no longer exists. Mach v. Maxwell, (1963), 174 Ohio St. 275.

.The; judgment of the. Court, of Appeals is,, therefore, affirmed.

Judgment,affirmed.

,;0’NEpn>),;C, J., Corrigan,-. Stern, .Cblebbezze, . W, BnqwN;and¿P,-Brown* JJ., concur,

Hubert,i«L, .concurs in th& judgment.-  