Caldwell v. 4th District CourtAnnotate this Case
Johnny Ray Caldwell,
Petitioner and Appellant,
Fourth District Court,
Respondent and Appellee.(1)
(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
Johnny Ray Caldwell, Draper, Appellant Pro Se
Jan Graham and Christine F. Soltis, Salt Lake City, for Appellee
Before Judges Wilkins, Davis, and Orme.
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)
Michael J. Wilkins,
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.