Robertson v. Johansen

IN THE UTAH COURT OF APPEALS
 

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Roy Don Robertson,

Petitioner and Appellant,

v.

Honorable Scott Johansen,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040902-CA
 

F I L E D
(February 10, 2005)
 

2005 UT App 58

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Eighth District, Vernal Department

The Honorable John R. Anderson

Attorneys: Roy Don Robertson, Duchesne, Appellant Pro Se

Brent M. Johnson, Salt Lake City, for Appellee

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Before Judges Billings, Greenwood, and Thorne.

PER CURIAM:

    Appellant Robertson is before this court attempting to appeal the denial of a petition for extraordinary relief, pursuant to rule 65B of the Utah Rules of Civil Procedure. This court filed its own motion for summary disposition on the basis that the issues presented are so insubstantial as to not merit further consideration. See Utah R. App. P. 10.

    Robertson's argument is that the Seventh District Juvenile Judges and Justice Court Judges lacked jurisdiction to sit as district court judges for purposes of his criminal case. As a result, he argues that his conviction and sentence are invalid. His rule 65B petition was filed in the Eighth District and was denied on the basis that a rule 65B petition is improper in this instance; that, as a judge of equal jurisdiction, the Eighth District judge cannot review the actions of other district court judges; and that, even if jurisdiction to rule on the issues existed, it appears that the justice court judges and juvenile court judges acted within their authority pursuant to a Utah Supreme Court order.

    A rule 65B petition is available only when no other plain, speedy, or adequate remedy exists. Rule 65B petitions are original proceedings in the appellate court. The trial court ruled that a petition pursuant to rule 65C is the appropriate means to attack a conviction and sentence. A rule 65C petition is ruled upon in the district court and reviewed by the appellate court. Utah Code section 78-35a-104(1) (2002) provides a substantive remedy for a collateral attack on a conviction. See Utah Code Ann. § 78-35a-104(1) (2002). Because rule 65B petitions are original proceedings in the appellate court, a district court is not in a position of authority over another district court. By filing his rule 65B petition in Eighth District, Robertson has attempted to place an Eighth District judge over a Seventh District judge of equal authority. Rule 65B of the Utah Rules of Civil procedure allow for extraordinary relief when an "inferior court" has exceeded its jurisdiction or abused its discretion. Further, Utah Code section 78-35a-104(1) requires that a petition based on rule 65C, be filed in the district that had original jurisdiction over the conviction and sentence. In this case, it is the Seventh District not the Eighth District.

    Likewise, this court cannot review the Utah Supreme Court's order that authorized the justice court judges and juvenile judges of the Eighth District to temporarily serve as judges of the Seventh District Court.

    The trial court's denial of relief is affirmed.

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Judith M. Billings,

Presiding Judge

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge