SCOT EUGENE GAITHER V. KENTUCKY COURT , ET AL
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RENDERED : FEBRUARY 23, 2006
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6*UyrrMr Courf of
2005-SC-000910-OA
SCOT EUGENE GAITHER
vs .
PETITIONER
ORIGINAL ACTION IN SUPREME COURT
KENTUCKY COURT OF APPEALS, ET AL
RESPONDENT
MEMORANDUM OPINION OF THE COURT
DENYING
The Petitioner, Scot Eugene Gaither, petitions this Court, pro se, for a Writ of
Mandamus requiring the Kentucky Court of Appeals to p!ace on its docket an appeal
from a ruling by the Daviess Circuit Court denying his CR 10 .06 motion. Gaither argues
that his timely Notice of Appeal and corresponding documentation were sent to the
Daviess Circuit Court, but was not filed until nearly 30 days past the time for appeal .
The Petitioner twice attempted to file a "brief' supporting his appeal of the ruling
with this Court ; both times he was advised by the Clerk of the Kentucky Supreme Court
that no appeal, other than the direct appeal of his conviction, had been filed with the
court. He then attempted to file the same documentation with the Kentucky Court of
Appeals and was likewise advised, by the Clerk of the Court of Appeals, that no appeal ,
had been filed there . The Clerk of the Court of Appeals further advised the Petitioner
that, because the notice of appeal was untimely filed with the Daviess Circuit Clerk, it
had not been formally filed and thus had not been transferred to the Court of Appeals
for initiation of an appeal from the Daviess Circuit Court order. The Petitioner argues
that he has no other remedy at law, or in equity, in which to protect his "jural rights" on
the RCr 10.06 action and appeal, other than seeking mandamus for the "procedural
non-compliance" on the part of the Respondent .
In response to the petition, it is the Kentucky Court of Appeals' position that the
notice of appeal of the ruling was not properly filed and that Petitioner has never sought
leave to file a belated notice of appeal ; and, as such, there is no proper action to place
on the docket of either appellate court.
A writ of mandamus is an exceptional remedy that is granted
only under the most extraordinary circumstances . The decision
as to whether to issue a writ is always discretionary. The
petition may be granted upon a showing : (1) that the lower
court is proceeding or is about to proceed outside its jurisdiction
and that there is no remedy through an application to an
intermediate court; or (2) that the lower court is acting or is
about to act erroneously (albeit within its jurisdiction), that there
exists no adequate remedy by appeal or otherwise, and that
great injustice and irreparable injury will result if the petition is
not granted.
Horn v. Wheeler, --- S.W.3d ----, 2005, WL 3244959, *1 (Ky.App .2005)
(citations omitted) .
Petitioner has not satisfied the requirements for a Writ of Mandamus and, as
such, we hereby deny his Petition.
All concur .
COUNSEL FOR PETITIONER :
Scot E. Gaither, Petitioner
KSP #175293 P .O. Box 5128
Eddyville, KY 42038
COUNSEL FOR RESPONDENT :
Gregory D . Stumbo
Attorney General of Kentucky
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
Hon. George E. Fowler, Jr.
Chief Staff Attorney
Kentucky Court of Appeals
360 Democrat Drive
Frankfort, KY 40601
Hon . Thomas O' Castlen
100 E. 2"d St.
Owensboro, KY 42303
Susan Tierney
100 E. 2"d St.
Owensboro, KY 42303
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