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Kee v. Lubeck



Not For Official Publication

Petitioner Jeremy Kee seeks a writ of mandamus directing the Respondent "to grant motion to dismiss all charges . . . for constitutional violations of double jeopardy, due process, and equal protection."

Kee seeks review of the denial of a motion to dismiss on the grounds that rule 4-608 of the Utah Rules of Judicial Administration is unconstitutional. Because Kee has no right to appeal this issue under Utah Code Ann. § 78-5-120 (2002), "pursuit of an extraordinary writ is procedurally correct." Dean v. Henriod, 975 P.2d 946, 948 (Utah Ct. App. 1999). The petition alleges the Respondent abused his discretion by denying the motion to dismiss. Accordingly, the petition invokes rule 65B(d)(2)(A) of the Utah Rules of Civil Procedure.

Granting a writ of mandamus is always a matter of discretion with the appellate court. See State v. Stirba, 972 P.2d 918, 920 n.2 (Utah Ct. App. 1998). The petition cannot substitute for an appeal; thus, it does not authorize the appellate court to exercise the same scope of review as on appeal or to circumvent statutory restrictions on an appeal. See id. at 920. Abuse of discretion for purposes of rule 65B(d)(2)(A) writs "must be much more blatant than the garden variety 'abuse of discretion' featured in routine appellate review." Id. An appellate court will act to correct only a "gross and flagrant abuse of discretion" or a "particularly egregious and momentous legal error." Id. at 923.

A defendant in a criminal case originating in a justice court is entitled to a trial de novo in district court. See Utah Code Ann. § 78-5-120(1) (2002). Rule 4-608(4) of the Code of Judicial Administration provides that " pon the filing of the notice of appeal and the issuance of a certificate of probable cause as provided for in the Rules of Criminal Procedure, the judgment of the justice court shall be stayed."

Kee was convicted of Driving Under the Influence of Alcohol in the Silver City Justice Court, and was again convicted following a trial de novo based on a plea of guilty in Third District Court. Once in district court, Kee moved for dismissal of the charges on the grounds that application of rule 4-608(4) constituted double jeopardy and denied him due process and equal protection under the law. Kee filed this petition after conviction and sentencing and after obtaining a stay of the sentence in district court. Respondent argues that the petition should be dismissed based upon the delay in asserting the claim. We review the petition on its merits based upon the fact that the underlying case is stayed in district court and that the court continues to exercise jurisdiction.

Kee first claims that section 78-5-120 and rule 4-608 violate constitutional guarantees prohibiting double jeopardy. A defendant appealing a justice court judgment has an unconditional right to a trial de novo "without regard to the judgment entered in justice court." State v. Hinson, 966 P.2d 273, 275 (Utah Ct. App. 1998). "The district court is not confined to the record before the justice court and need not defer to the justice court's findings and determinations." Id. Following trial de novo, the district court "renders a new, distinct, and independent judgment." Id. Kee contends that if the justice court judgment is not automatically vacated, rather than stayed, the trial de novo will subject him to double jeopardy by a second trial on the same charges.

The United States Supreme Court has rejected double jeopardy claims pertaining to similar "two tier systems." See Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 104 S. Ct. 1805 (1984); Ludwig v. Massachusett

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