Raught v. Harding

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Shauna Raught,
Petitioner,

v.

Honorable Ray M. Harding Jr.,
Respondent.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020213-CA

F I L E D
April 2, 2002 2002 UT App 97 -----

Original Proceeding in this Court

Attorneys:
W. Andrew McCullough, Midvale, for Petitioner
Brent M. Johnson, Salt Lake City, for Respondent
Mark Shurtleff and Fred Voros, Salt Lake City, for the State of Utah

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Before Judges Jackson, Bench, and Orme.

PER CURIAM:

This case is before the court on Raught's petition for extraordinary writ. Petitioner claims that she has been previously convicted of criminal contempt on the same facts which the State has charged as custodial interference, a third degree felony in violation of Utah Code Ann. §76-5-303 (Supp. 1999). Therefore, Petitioner claims that trying her on the custodial interference charge would subject her to double jeopardy.

Rule 65B of the Utah Rules of Civil Procedure allows for a remedy in the form of a writ when no other plain, speedy, and adequate remedy is available. In this case, Petitioner had a plain, speedy, and adequate remedy in the form of a direct appeal from the trial court's denial of her motion to dismiss. The Utah Supreme Court has previously indicated that a denial of a motion to dismiss on the basis of double jeopardy is a final judgment for purposes of appeal. State v. Ambrose, 598 P.2d 354, 357 (Utah 1979). Petitioner did not file a notice of appeal from the trial court's order. Petitioner claims that counsel did not receive the trial court's ruling on the motion, which was taken under advisement on December 20, 2001, until March of 2002, when counsel contacted the court regarding the ruling, beyond the time for filing any type of appeal. However, the trial court's ruling was issued January 4, 2002, and the mailing certificate accompanying the ruling indicates that a copy was sent to counsel on the same day. Counsel waited over two months from the date the motion was taken under advisement to contact the court.

Because a plain, speedy, and adequate remedy was available to Petitioner, we deny the petition for extraordinary relief. However, Ambrose does not specifically preclude Petitioner from filing a direct appeal at the end of trial if she is convicted of an offense. See id. In such an appeal, she may raise any double jeopardy issues available to her.
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Gregory K. Orme, Judge