Carl Clausen v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-710

NOT DESIGNATED FOR PUBLICATION

CARL CLAUSEN

Petitioner

v.

STATE OF ARKANSAS

Respondent

Opinion Delivered October 13, 2005

PRO SE PETITION FOR WRIT OF MANDAMUS [CIRCUIT COURT OF INDEPENDENCE COUNTY, CR 1993-41, HON. JOHN DAN KEMP, JR., JUDGE]

PETITION DISMISSED

PER CURIAM

A jury found Carl Clausen guilty of battery of his three-year-old stepdaughter and sentenced him to two years' imprisonment in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed the conviction. Clausen v. State, 50 Ark. App. 149, 901 S.W.2d 35 (1995). Clausen, now incarcerated in West Virginia, filed a defendant's motion to modify sentencing in the trial court on November 22, 2004. The motion was dismissed by order entered November 29, 2004. Clausen next filed a pro se petition for writ of mandamus in this court, which is now before us.

The purpose of a writ of mandamus is to enforce an established right or to enforce the performance of a duty. Manila School Dist. No. 15 v. Wagner, 357 Ark.20, 159 S.W.3d 285 (2004). It is issued by this court only to compel an officer or judge to take some action. Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301 (2000). A petitioner must show a clear and certain right to the relief sought and the absence of any other adequate remedy when requesting a writ of mandamus. Id. at 777, 20 S.W.3d at 304. The writ will not lie to control or review matters of discretion. Id.

Here, although he names the State of Arkansas rather than the circuit judge as respondent, it is clear that petitioner is attempting to compel the lower court to make a particular ruling to change a prior ruling. Extraordinary relief is not a substitute for an appeal. Dean v. Williams, 339 Ark. 439, 6 S.W.3d 89 (1999); Gran v. Hale, 294 Ark. 563, 745 S.W.2d 129 (1988). Petitioner does no more than reargue his motion to modify sentencing and raises no new issue in his petition. We may refuse to issue a writ of mandamus where the petitioner had the adequate remedy of raising the issue on appeal. See, Johnson v. Hargrove, ___ Ark. ___, ___ S.W.3d ___ (June 16, 2005). Accordingly, this petition for writ of mandamus is dismissed.

Petition dismissed.