Friedman v. Bohling

----ooOoo----

Charles Dennis Friedman,
Petitioner,

v.

Honorable William B. Bohling,
Respondent.

MEMORANDUM DECISION
(Not For Official Publication)
Case No. 20020222-CA

F I L E D

May 31, 2002 2002 UT App 185 -----

Original Proceeding in this Court

Attorneys:
Charles D. Friedman, Lompoc, California, Petitioner Pro Se
Brent M. Johnson, Salt Lake City, for Respondent

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Before Judges Bench, Davis, and Thorne.

PER CURIAM:

This case is before the court on a petition for extraordinary relief, pursuant to rule 65B(d) of the Utah Rules of Civil Procedure. The writ relates to the seizure of cash found in a search based on a warrant. Initially, Petitioner and the State reached an agreement regarding the forfeiture action. However, the State claimed to have later discovered that federal authorities "actually possessed" the cash. The State sought to nullify the agreement and dismiss the forfeiture action on the basis that neither the State, nor the district court had jurisdiction over the cash. The trial court granted the motion.

Petitioner asks this court to order the trial court to do three things. First, to compel the trial court to serve Petitioner with a copy of the order of dismissal, including a certificate of service, reflecting the date of service. Petitioner concedes that the second copy of the order was sent to the correct address, but did not include a "correct" certificate of service.(1) Petitioner, however, cites no mandate requiring the court to provide him a certificate of service, as he requests. Therefore, Petitioner has not demonstrated that the trial court failed to perform a function required of the court. See Utah R. Civ. P. 65B(d).

Second, Petitioner requests that this court order the trial court to return to Petitioner the money held, which is the subject of the forfeiture. This claim requires review of the trial court's determination that it lacks jurisdiction over the money because the federal authorities possess the money. This claim should be brought in a direct appeal. A writ is not a substitute for direct appeal. See Renn v. Utah State Bd. of Pardons, 904 P.2d 677, 683 (Utah 1995). Further, extraordinary relief is available only when no other plain, speedy, or adequate remedy is available. See Utah R. Civ. P. 65B(a). Petitioner has failed to demonstrate that he has no other remedy.

Third, Petitioner requests this court to order the trial court to litigate his counterclaims in the forfeiture action. Again, this is a claim to be argued on direct appeal because the issue is whether the trial court's dismissal of the action effectively dismissed the counterclaims. A petition for extraordinary relief is available when neither an appeal of right, nor a right of interlocutory appeal is available. See id. at 682.

For the reasons stated above, this court dismisses all of the claims in the petition for extraordinary relief.
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
William A. Thorne Jr., Judge

1. The first copy of the order was sent to an incorrect address. When the trial court realized its error, it resent the order.