DeRieux v. Wright

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Robert Allen DeRieux,
Petitioner and Appellant,

v.

Dale Wright, Warden,
Utah State Prison,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020310-CA

F I L E D
June 20, 2002 2002 UT App 215 -----

Third District, Salt Lake Department
The Honorable Frank G. Noel

Attorneys:
Robert Allen DeRieux, Bountiful, Appellant Pro Se
Mark L. Shurtleff and Natalie A. Wintch, Salt Lake City, for Appellee

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Before Judges Davis, Greenwood, and Orme.

PER CURIAM:

Appellant filed for extraordinary relief in the trial court under rule 65B(b) and (d) of the Utah Rules of Civil Procedure. He claims that the Board of Pardons violated his right to fundamental fairness and subjected him to double jeopardy by failing to credit him for time served. Appellant was sentenced to prison in 1996. The trial court stayed the sentence upon successful completion of probation, the terms of which included completion of an inpatient treatment program and no violations of the law. In 1997, Appellant pleaded guilty to a class A misdemeanor. He was sentenced to 365 days in jail, which the trial court converted to 0 to 1 year in prison when he was committed to prison on the original 1996 conviction, due to the probation violation. In sentencing Appellant on the class A misdemeanor, the trial court ordered credit for time served, but did not order credit for time served when it converted the jail term to an indeterminate prison term.

The trial court ruled that the issue of how much time an inmate will actually serve on an indeterminate sentence is left to the exclusive discretion of the Board of Pardons and is not typically subject to judicial review. See Labrum v. Utah Bd. of Pardons, 870 P.2d 903, 907 (Utah 1993). Under Labrum, the trial court did not have authority to order the Board of Pardons to grant credit for time served. Further, the trial court determined that Appellant had not been subjected to double jeopardy because the time he served in the inpatient program was a term of the probation agreement Appellant entered into with the trial court, not a punishment for the offense. See Rawlings v. Holden, 869 P.2d 958, 962 (Utah App. 1994). We agree with the trial court's interpretation of well settled law and affirm its dismissal of the petition.
 
 

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James Z. Davis, Judge
 
 

______________________________
Pamela T. Greenwood, Judge
 
 

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Gregory K. Orme, Judge