Dunn v. Board of Pardons

Dunn v. Board of Pardons

IN THE UTAH COURT OF APPEALS

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Robert Dunn,

Petitioner and Appellant,

v.

Utah State Board of Pardons,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030326-CA
 

F I L E D
(May 6, 2004)
 

2004 UT App 156

 

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Third District, Salt Lake Department

The Honorable L. A. Dever

Attorneys: Robert Dunn, Appellant Pro se

Mark L. Shurtleff, Salt Lake City, for Appellee

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Before Judges Billings, Orme, and Thorne.

PER CURIAM:

Robert Dunn appeals the dismissal of his petition for extraordinary relief under Utah Rule of Civil Procedure 65B(d). This case is before the court on its own motion for summary disposition on the basis that the grounds for review are so insubstantial as not to merit further proceedings or consideration by the appellate court. See Utah R. App. P. 10(a).

In November 2000, Dunn was detained on a warrant from the Utah Board of Pardons (Board) for parole violations. In December 2002, he filed a petition for relief, alleging that the Board exceeded its jurisdiction when it issued the warrant that led to Dunn's current detention. As support, Dunn referred to a June 2002 decision by a judge of the Third District Court in an unrelated case determining that the issuance of warrants was strictly a judicial function. The trial court dismissed Dunn's petition without a hearing. On appeal, Dunn asserts his rights were violated because he was denied a hearing.

The Board has express authority to issue warrants to retake parolees. See Utah Code Ann. § 77-27-11 (2003). The Board "may revoke the parole of any person who is found to have violated any condition of his parole." Id. § 77-27-11(1). A member of the Board "may issue a warrant based upon a certified warrant request to a peace officer or other persons authorized to arrest, detain, and return to actual custody a parolee." Id. § 77-27-11(3).

The decision upon which Dunn relies has been stayed pending appeal, and an appeal is currently before the Utah Supreme Court. In the interim, the Board retains its statutory authority to issue warrants to detain parolees. Thus, the trial court properly dismissed Dunn's petition.

Additionally, the trial court did not err in dismissing Dunn's petition without a hearing. Summary dismissal is permitted where a petition fails to state a claim. See Lancaster v. Utah Bd. of Pardons, 869 P.2d 945, 948 (Utah 1994) (holding a "petition of any nature which fails to state a claim may be dismissed"). Dunn's petition failed to state a claim and was thus properly summarily dismissed.

Accordingly, the trial court's dismissal of the petition is affirmed.

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Judith M. Billings,

Presiding Judge

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Gregory K. Orme, Judge

I DISSENT:

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William A. Thorne Jr., Judge