Gibbons v. Frederick

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Dale Moroni Gibbons,
Petitioner,

v.

Honorable Dennis Frederick,
Third District Court Judge;
David E. Yocom,
Salt Lake County District Attorney;
and Paul Parker,
Deputy District Attorney,
Respondents.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020728-CA

F I L E D
October 31, 2002 2002 UT App 359 -----

Original Proceeding in this Court

Attorneys:
Darwin Overson, Mark Flores, and Clayton Simms, Salt Lake City, for Petitioner
Brent M. Johnson, Salt Lake City, for Respondent Honorable Dennis Frederick
David E. Yocom, Don Hansen, John Soltis, and T.J. Tsakalos, Salt Lake City, for Respondents David E. Yocom and Paul Parker
Dennis C. Ferguson, Salt Lake City, for amicus curiae individually named Salt Lake County employees

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Before Judges Jackson, Billings, and Thorne.

PER CURIAM:

Petitioner Gibbons requests an extraordinary writ, in the nature of mandamus, compelling Respondent Dennis Frederick, Third District Court Judge, to enter an order releasing all property taken into evidence at trial. See Utah R. Crim. P. 65B; Utah R. App. P. 19. Gibbons further requests that the writ also compel Respondents Yocom and Parker to return all evidence seized from Gibbons during the criminal investigation.

Rule 65B of the Utah Rules of Civil Procedure states: "Where no other plain, speedy and adequate remedy is available, a person may petition the court for extraordinary relief." Respondents Yocom and Parker correctly assert that Gibbons has a plain, speedy and adequate remedy in the form of a direct appeal. Gibbons has a right of direct appeal provided under Utah Code Ann. § 77-18a-1(1)(b) (1999), which states: "An appeal may be taken by the defendant from: . . . (b) an order made after judgment that affects the substantial rights of the defendant." See also State v. Davis, 769 P.2d 840, 844 (Utah Ct. App. 1989) (reversing, on direct appeal, trial court's order denying defendant's motion to compel return of seized evidence after criminal charges dismissed).

Based upon our determination that Gibbons has a plain, speedy and adequate remedy through the normal appellate process, the Petition for Extraordinary Writ is hereby dismissed.
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
William A. Thorne Jr., Judge