State ex rel. Cortez v. Bentley

457 So. 2d 1072, 1984 Fla. App. LEXIS 14145

Opinion

RYDER, Chief Judge.

Petitioner seeks a writ of certiorari, or in the alternative, a writ of mandamus commanding the trial court to show cause and to appoint counsel at public expense to represent the petitioner during his appeal of the trial court’s denial of his motion to vacate judgment and sentence. Fla.R. Crim.P. 3.850.

Mandamus denied. A writ of mandamus “is by nature a discretionary writ which issues only upon the showing of a clear legal right in the relator to the performance of an indisputable legal duty by the respondent.” State ex rel. Eichenbaum v. Cochran, 114 So.2d 797, 800 (Fla.1959). See also Heath v. Becktell, 327 So.2d 3, 4 (Fla.1976). The writ is used to enforce “a clear legal right to the performance of clear legal duty rather than to establish such a right.” State v. Gamble, 339 So.2d 694, 695 (Fla. 2d DCA 1976).

Certiorari denied. See Graham v. State, 372 So.2d 1363, 1365-66 (Fla.1979) and Hooks v. State, 253 So.2d 424, 426 (Fla.1971), cert. denied, 405 U.S. 1044, 92 S.Ct. 1330, 31 L.Ed.2d 587 (1972).

SCHEB and OTT, JJ., concur.