Wahl v. Simpson

385 S.W.2d 171

Opinion

DAVIS, Commissioner.

Dorris Wahl, presently imprisoned at Ed-dyville pursuant to judgment of the Henderson Circuit Court, seeks an order of mandamus requiring the judge of the Henderson Circuit Court to rule upon an RCr 11.42 motion to vacate the judgment of conviction. This original action is pursuant to. Ky.Constitution, Sec. 110.

The petitioner alleges that he filed the motion to vacate “nearly two months ago” (we assume this refers to two months prior to the filing of the present action, which was filed October 29, 1964.) The petitioner further asserts that the respondent circuit judge (whom he incorrectly designates as “Frast” Y. Simpson) has failed to rule upon the RCr 11.42 motion.

Respondent was duly notified of the filing and nature of this proceeding by correspondence from the Clerk of this court, but has not made any response to the petition. Response was due “within 10 days from the date of the filing of the petition.” RCA 1.420. We are left with no alternative except to treat as confessed the allegations of the petition. It follows that the relief requested must be granted. Benson v. Iler, Ky., 371 S.W.2d 15; Benson v. Iler, Ky., 371 S.W.2d 16.

The volume of proceedings of this nature suggests that the circuit courts throughout the Commonwealth may be omitting the important step of notifying movants of action taken in proceedings under RCr 11.42. It is imperative that prompt action be taken in such motions, and it is equally important that the movant be apprised of whatever action is taken.

The petition for mandamus is sustained and respondent is directed to dispose of the RCr 11.42 motion by appropriate order.