Wood v. Turner

19 Utah 2d 133 (1967)

427 P.2d 397

VIRGIL L. WOOD, PLAINTIFF AND APPELLANT, v. JOHN W. TURNER, WARDEN UTAH STATE PRISON, DEFENDANT AND RESPONDENT.

No. 10471.

Supreme Court of Utah.

May 9, 1967.

Jimi Mitsunaga and John D. O'Connell, Salt Lake City, for appellant.

Phil L. Hansen, Atty. Gen., Ronald N. Boyce, Chief Asst. Atty. Gen., Salt Lake City, for respondent.

KELLER, District Judge:

The appellant is presently serving two separate sentences in the Utah State Prison imposed as the penalty for two separate convictions of robbery. Such sentences run concurrently. After the beginning of both sentences, the appellant brought a habeas corpus proceeding making an issue of the validity of only one of such convictions. He was denied the relief sought by that action, and by this action attacks the validity of the other conviction.

The appeal is from a judgment of former District Judge A.H. Ellett dismissing appellant's petition without a hearing on the issues tendered by his petition. The issue of the validity of the appellant's present detention in the Utah State Prison is res judicata. Since appellant could have tendered the issues upon which he now seeks relief in the first habeas corpus proceeding but failed to do so, he is barred from presenting them for judicial determination.[1] Affirmed.

CROCKETT, C.J., and CALLISTER, TUCKETT, and HENRIOD, JJ., concur.

ELLETT, J., being disqualified, does not participate herein.

[1] Wheadon v. Pearson, 14 Utah 2d 45, 376 P.2d 946 (1962); East Mill Creek Water Co. v. Salt Lake City et al., 108 Utah 315, 159 P.2d 863 (1945).