Caldwell v. 4th District Court

Johnny Ray Caldwell,
Petitioner and Appellant,

v.

Fourth District Court,
Respondent and Appellee.(1)

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990230-CA

F I L E D
July 1, 1999

1999 UT App 221 -----

Fourth District, Provo Department
The Honorable Anthony W. Schofield

Attorneys:
Johnny Ray Caldwell, Draper, Appellant Pro Se
Jan Graham and Christine F. Soltis, Salt Lake City, for Appellee

-----

Before Judges Wilkins, Davis, and Orme.

PER CURIAM:

Appellant, who pleaded guilty to arranging to distribute a controlled substance, a second degree felony in violation of Utah Code Ann. § 58-37-8(1)(a)(ii) (1997), appeals the trial court's dismissal of his December 1998 petition for post-conviction relief. The trial court dismissed the petition without prejudice because "petitioner has not attached copies of the pleadings filed by petitioner in prior proceedings which adjudicated the legality of his restraint." We affirm.

A petition must be dismissed if it is apparent that the claims raised have already been adjudicated  in a prior  proceeding. See Utah R. Civ. P. 65C(g)(1).(2)While challenging a conviction from which he failed to appeal and indicating in his petition that a previous petition had been filed, petitioner failed to append appropriate documentation, making it impossible for the trial court to determine whether his claims had been adjudicated in a prior proceeding. Therefore, the trial court did not err in dismissing the petition without prejudice to petitioner's ability to correct the procedural defects and file a petition fully complying with the requirements of Rule 65C.(3) Affirmed.
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
Gregory K. Orme, Judge

1. The trial court correctly noted in its order of dismissal that petitioner improperly designated the court as the respondent in this matter. See Utah R. Civ. P. 65C(h) (stating that the state is the respondent in such petitions). However, for the sake of clarity and continuity we retain the original caption used by the parties and the trial court.

2. Although characterized by petitioner and treated by the trial court as a Rule 65B(b) petition, the instant petition is governed by the Post-Conviction Remedies Act and Rule 65C, as petitioner is challenging the underlying conviction and sentence. See Utah Code Ann. § 78-35a-102 (1996); Utah R. Civ. P. 65C(a).

3. Rule 65C also provides that if the petition suffers a mere pleading error or fails to comply with the requirements of the rule, such as the requirement to attach certain documents, the petitioner should be given the opportunity to cure the defects with a twenty day window to file an amended petition. See Utah R. Civ. P. 65C(g)(3). The trial court essentially afforded the petitioner this same opportunity by dismissing without prejudice.