Dorge v. Utah Court of Appeals

762 P.2d 347, 84 Utah Adv. Rep. 6, 1988 Utah LEXIS 55, 1988 WL 102359

• Court: Utah Supreme Court
• Decided: June 8, 1988
• Docket: No. 880167
• Status: Published

Opinion

DURHAM, Justice:

Petitioner has petitioned this Court for a writ of mandamus to the Court of Appeals to require it to reinstate his appeal from a criminal conviction in that court. That appeal was dismissed for failure to amend a deficient docketing statement and to either request a transcript or file a notice that a transcript was not required, in violation of rules 9 and 11(e) of the Rules of the Utah Court of Appeals.

Petitioner might have, but has not, sought appellate review of the order of dismissal by filing a petition for certiorari with this Court, which, if granted, would have allowed us to review the correctness of the Court of Appeals’ decision. However, on a petition for a writ of mandamus, petitioner is entitled to relief only if the Court of Appeals exceeded its jurisdiction or abused its discretion. We.cannot agree that either is the case here. Although on the face of the pleadings before us it may appear that petitioner has been harshly penalized for deficiencies in the performance of counsel, it is certainly within the discretion of the Court of Appeals to enforce its rules by way of dismissal. If the harm was done as a result of failure by petitioner’s legal counsel, he will have to seek redress from that source. Ordinarily, we will not use mandamus to prevent the Court of Appeals from enforcing its procedural rules.

STEWART and ZIMMERMAN, JJ., concur. HALL, C.J., and HOWE, Associate C.J., do not participate herein.