Kruitbosch v. Hadfield

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Kruitbosch v. Hadfield. Filed December 9, 1999 IN THE UTAH COURT OF APPEALS

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Gary Taylor Kruitbosch,
Petitioner,

v.

Honorable Ben H. Hadfield,
Respondent.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990782-CA

F I L E D
December 9, 1999
  1999 UT App 360 -----

First District, Brigham City Department
The Honorable Ben H. Hadfield

Attorneys:
Gary Taylor Kruitbosch, Draper, Petitioner Pro Se
Brent M. Johnson, Salt Lake City, for Respondent
Jan Graham and Laura B. Dupaix, Salt Lake City, for State of Utah

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Before Judges Greenwood, Bench, and Orme.

PER CURIAM:

In a petition filed barely a month after his fourth successive motion to withdraw his guilty plea was filed in the trial court, petitioner seeks an order of this court directing the trial court to hold an evidentiary hearing on his motion. For the reasons set forth below, we deny the petition and all prior and subsequent miscellaneous motions filed by petitioner that remain pending in this matter.

A petition for extraordinary relief directed to a district court judge is governed by Rule 65B(d) of the Utah Rules of Civil Procedure and Rule 19 of the Utah Rules of Appellate Procedure. Rule 19 requires that a petition contain a statement of all persons whose interests might be substantially affected, a statement of the issues presented and of the relief sought, a statement of the facts necessary to an understanding of the issues presented, a statement of the reasons why no other plain, speedy or adequate remedy exists and why the relief should be granted, and copies of any order or other parts of the record which may be essential to an understanding of the matters set forth in the petition. See Utah R. App. P. 19(b). Petitioner has failed to comply with these requirements. In particular, he has not identified all affected parties, stated the facts relevant to the relief he seeks, stated why no other plain, speedy or adequate remedy exists, or provided copies of necessary documents.

Further, Rule 65B(d)(2) authorizes relief where a court "has exceeded its jurisdiction or abused its discretion," or "failed to perform an act required by law." Petitioner fails to demonstrate how the trial court has abused its discretion or failed to perform an act required by law. He identifies no legal or factual support for his assertion that he is entitled to an evidentiary hearing on his motion.

Finally, extraordinary relief may only be granted "where no other plain, speedy and adequate remedy is available." Utah R. Civ. P. 65B(a); Utah R. App. P. 19(b)(4). In this case, petitioner has an adequate remedy in the trial court for the relief he seeks. The State has not yet responded to petitioner's motion in the trial court, petitioner has not submitted the motion for determination nor requested a ruling, and the court has not had the opportunity to determine whether a hearing is warranted. According to Utah Code Ann. § 78-7-25 (1996), the district court will have two months to decide the matter once it is submitted for final determination, presumably after responsive pleadings have been filed and the court has determined whether to hold an evidentiary hearing. Petitioner must actively pursue the proper procedure in the trial court before seeking relief from this court.
 
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
Gregory K. Orme, Judge