Lee Allen Aase, Petitioner, v. State of Utah, Respondent.

Case No. 20020500-CA.Utah Court of Appeals.
Filed August 8, 2002. (Not For Official Publication)

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Original Proceeding in this Court.

Lee Allen Aase, Draper, Petitioner Pro Se.

Mark L. Shurtleff and Erin Riley, Salt Lake City, for Respondent.

Before Judges Davis, Greenwood, and Orme.

MEMORANDUM DECISION
PER CURIAM:

This case is before the court on a Petition for Writ of Mandamus. The petition fails to satisfy the requirements of rule 19 of the Utah Rules of Appellate Procedure and rule 65B of the Utah Rules of Civil Procedure.

The petition does not raise any issue that falls within the ambit of a proceeding in the nature of mandamus, i.e., to compel performance of a duty or act by a lower court. Instead, the petition attempts to collaterally challenge the original conviction, which included a firearm enhancement. That conviction and sentence were affirmed on appeal. SeeState v. Aase, 762 P.2d 1113 (Utah Ct.App. 1988). The petition does not name a responding judge or court and provides no supporting allegations demonstrating that a responding judge or agency has exceeded its jurisdiction or failed to perform a duty required by law. See
Utah R. Civ. P. 65B(d). The relief requested is the type of relief associated with a habeas corpus proceeding, which must be pursued in district court. This court transferred Petitioner’s habeas corpus petition raising similar arguments in our case no. 20020488-CA to the appropriate district court, as required by rule 20 of the Utah Rules of Appellate Procedure. Finally, the petition does not state the reasons “why no other plain, speedy or adequate remedy exists and why the writ should issue.” Utah R. App. P. 19(b)(4); see also Utah R. Civ. P. 65B(a) (stating petition for extraordinary relief may be filed if “no other plain, speedy and adequate remedy is available”). Petitioner filed an appeal from the district court’s denial of his Motion for Summary Judgment, which is pending as our case no. 20020426-CA. To the extent that he challenges his sentence as illegal, this claim must be pursued in a motion to correct illegal sentence filed in the criminal case under rule 22(e) of the Utah Rules of Criminal Procedure, and in any resulting appeal from the denial of the motion.

We dismiss the petition for writ of mandamus as frivolous on its face. See Utah R. App. P. 19(c).

Pamela T. Greenwood, Judge, Gregory K. Orme, Judge.