Bacon v. Hon. K.L. McIff

----ooOoo----

Michael A. Bacon,
Petitioner,

v.

Honorable K.L. McIff,
Respondent.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020861-CA

F I L E D
November 29, 2002 2002 UT App 398 -----

Original Proceeding in this Court

Attorneys:
Michael A. Bacon, Gunnison, Petitioner Pro Se
Brent M. Johnson, Salt Lake City, for Respondent -----

Before Judges Billings, Bench, and Thorne.

PER CURIAM:

Petitioner filed for extraordinary relief under rule 65B of the Utah Rules of Civil Procedure. Petitioner was tried and convicted of two third degree felonies. He then reached an agreement with the State involving a new charge of Escape from Official Custody, which occurred in the interim. Petitioner claims that the trial court erred by allowing the State's attorney to represent to the court that a motion for a new trial, filed by Petitioner's attorney, was to be withdrawn because of an agreement with Petitioner's attorney that the motion would be withdrawn if the State demonstrated that it had met the terms of the plea agreement with Petitioner.(1) However, the majority of Petitioner's claims relate to his trial counsel, not the trial court. Yet, Petitioner has filed for extraordinary relief, pursuant to rule 65B of the Utah Rules of Civil Procedure.

Petitioner requests monetary damages and to vacate or set aside the convictions, or, in the alternative, grant his motion for a new trial. Relief in the form of vacating a conviction is post-conviction relief and must be filed under rule 65C of the Utah Rules of Civil Procedure. Therefore, the petition must first be filed in the district court, not directly with this court. See Utah Code Ann. § 78-35a-102 (Supp. 2002) and Utah R. Civ. P. 65C(b).

For the reasons stated above, the petition for extraordinary relief is dismissed.
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
William A. Thorne Jr., Judge

1. It is unclear from the trial record whether the motion for a new trial was withdrawn or denied on its merit.