BRISCOE (WINSTON) VS. ROBERTS (LARRY), ET AL.
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RENDERED: MARCH 26, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002024-MR
WINSTON BRISCOE
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 08-CI-04789
LARRY ROBERTS, FAYETTE
COUNTY ATTORNEY AND
WILMA F. LYNCH, FAYETTE
CIRCUIT COURT CLERK
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE AND TAYLOR, JUDGES; BUCKINGHAM,1 SENIOR
JUDGE.
TAYLOR, JUDGE: Winston Briscoe brings this pro se appeal from an October 8,
2008, order of the Fayette Circuit Court denying Briscoe’s petition for writ of
mandamus. We affirm.
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
21.580.
Briscoe was an inmate at the Fayette County Detention Center when
he was charged with the offense of the first-degree sodomy allegedly committed
against another inmate, Jaime Price. Briscoe was convicted of said offense and
sentenced to twenty-years’ imprisonment.
Briscoe then filed a pro se writ of mandamus in the Fayette Circuit
Court. Therein, Briscoe sought to compel Fayette County Attorney, Larry Roberts,
and Fayette Circuit Court Clerk, Wilma Lynch, to issue warrants of arrest for
Sharon Dean and Doris Zirbes, who were apparently guards at the Detention
Center. Briscoe alleged that Dean and Zirbes allowed Briscoe and Price to have
consensual sex while in custody and are “guilty of Complicity – Abuse of Public
Office/Abuse of Powers.” By order entered October 8, 2008, the circuit court
denied Briscoe’s petition for writ of mandamus. This appeal follows.
Briscoe contends that the circuit court erred by denying his petition
for writ of mandamus. We disagree.
A writ of mandamus is an extraordinary remedy that compels the
performance of a ministerial act or ministerial duty. Sowders v. Lewis, 241 S.W.3d
319 (Ky. 2007). Herein, a prosecutor’s decision to bring charges against Dean and
Zirbes is a discretionary act, as opposed to a ministerial act. See Flynt v. Com.,
105 S.W.3d 415 (Ky. 2003). Therefore, a writ of mandamus will not lie to compel
performance thereof. Moreover, Wilma Lynch, in her capacity as Fayette Court
-2-
Clerk, does not have the authority to initiate criminal charges. As such, we hold
that the circuit court properly denied Briscoe’s writ of mandamus.
For the foregoing reasons, the order of the Fayette Circuit Court is
affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
Winston Briscoe, Pro Se
Beattyville, Kentucky
BRIEF FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
M. Lee Turpin
Special Assistant Attorney General
Frankfort, Kentucky
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