Shunk v. Fuchs

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Shunk v. Fuchs, Case No. 20000192-CA and Shunk v. Barrett, Case No. 20000193-CA, [This is a consolidated MD], Filed May 4, 2000 IN THE UTAH COURT OF APPEALS

----ooOoo----

Daniel Shunk,
Petitioner,

v.

Honorable Dennis Fuchs,
Respondent.
______________________________

Daniel Shunk,
Petitioner,

v.

Honorable William Barrett,
Respondent.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000192-CA,
and No. 20000193-CA

F I L E D
May 4, 2000
  2000 UT App 134 -----

Original Proceeding in this Court

Attorneys:
Daniel Shunk, Sheridan, Oregon, Petitioner Pro Se
Brent M. Johnson, Salt Lake City, for Respondents

-----

Before Judges Bench, Billings, and Davis.

PER CURIAM:

Petitioner seeks extraordinary relief from this court under Utah Rule of Civil Procedure 65B in the form of a writ directing the district court to act on a petition for habeas corpus filed in the district court. For the reasons set forth below, we deny the petition for extraordinary relief.

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. 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) authorizes relief only where a court "has exceeded its jurisdiction or abused its discretion," or "failed to perform an act required by law." Utah R. Civ. P. 65B(d)(2)(A). "Where the challenged proceedings are judicial in nature, the court's review shall not extend further than to determine whether the respondent has regularly pursued its authority." Utah R. Civ. P. 65B(d)(4). Petitioner fails to demonstrate how the trial court abused its discretion or failed to perform an act required by law. While Utah Rule of Civil Procedure 65C directs a district court to determine whether a writ is subject to summary dismissal or whether it warrants a response, the rule does not set a time limit for such action. Moreover, it is not clear whether the district court was even aware of the petition, as it was filed in the underlying criminal case rather than in a separate civil action, as required by Rule 65C. Petitioner must file a notice to submit or other triggering document to obtain respondent's consideration of his petition.

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). Petitioner has an adequate remedy in the trial court for the relief he seeks. Petitioner may move the district court to dismiss the charges pending against him and properly serve the motion on the State. Petitioner must actively pursue the proper procedure in the district court before seeking relief from this court.
 
 
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 
 

______________________________
James Z. Davis, Judge

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