Candelario v. Cook

• Decision Date: 04 April 1990
• Docket Number: No. 890157,890157
• Citation: 789 P.2d 710
• Parties: Tracy CANDELARIO, Plaintiff and Appellant, v. Gerald COOK, Defendant and Appellee.
• Court: Utah Supreme Court

Page 710

789 P.2d 710

Tracy CANDELARIO, Plaintiff and Appellant, v. Gerald COOK, Defendant and Appellee.

No. 890157.

Supreme Court of Utah.

April 4, 1990.

Mark H. Tanner, Castle Dale, for plaintiff and appellant.

R. Paul Van Dam, Kent M. Barry, Salt Lake City, for defendant and appellee.

DURHAM, Justice:

Plaintiff appeals from an order dismissing his application for an extraordinary writ seeking postconviction relief pursuant to Utah Rule of Civil Procedure 65B(i). We affirm.

Tracy Candelario was sentenced for aggravated robbery, a first degree felony under Utah Code Ann. § 76-6-302 (1978) (amended 1989), on May 24, 1985, after entering a guilty plea. He received a prison sentence of five years to life but was placed on probation by Judge Wilkinson of the third district. On December 9, 1985, Candelario was arrested and subsequently charged with robbery, a second degree felony under Utah Code Ann. § 76-6-301 (1978). He pleaded guilty to this charge on December 27, 1985, and was later committed to the Utah State Prison for a term of one to fifteen years.

On February 7, 1986, before being sentenced to prison for robbery, Candelario was brought before Judge Wilkinson on an order to show cause why his probation should not be revoked. At this hearing, Candelario admitted to the four allegations contained in the affidavit in support of the motion. The allegations were that Candelario (1) had committed robbery, (2) had failed to report to his probation officer, (3) had not made restitution, and (4) had failed to participate in a court-ordered program to complete community service hours. At the conclusion of this hearing, Judge Wilkinson continued Candelario's probation. There was a second hearing on an order to show cause on April 11, 1986. The affidavit supporting this order alleged the second robbery conviction and a resulting prison commitment which had issued on February 14, 1986. Candelario admitted the allegations, and Judge Wilkinson revoked probation and committed Candelario to serve the original aggravated robbery sentence of five years to life concurrently with the sentence on the second robbery.

Candelario filed a petition for a writ of habeas corpus with the third district court, alleging that the second hearing on an order to show cause violated the double jeopardy clause of the United States Constitution. That petition was denied by Judge Daniels on July 28, 1987. Candelario did not appeal from that denial. He instead filed a petition for relief under Utah Rule of Civil Procedure 65B(i) over a year later, alleging the same double jeopardy violation and a due process violation. This petition was dismissed by Judge Rokich on February 22, 1989. Candelario appeals from that order.

Candelario asks this court to review his claim that he was subjected to double jeopardy. However, his appeal is not from Judge Daniels' decision regarding the double jeopardy claim, but instead is from Judge Rokich's determination on the rule 65B(i) petition. Candelario's double jeopardy claim is thus not properly before us. We therefore review Judge Rokich's dismissal of the second petition.

Judge Rokich dismissed Candelario's petition in this action based on the doctrine of res judicata and for failure to state a claim upon which relief may be granted. Dismissal of the petition on these grounds was correct, but Judge Rokich could have relied on the provisions of rule 65B(i), under which Candelario's petition was before him, rather than invoking the doctrine of res judicata. Rule 65B(i)(2) is designed to prevent successive petitions for a writ based on identical grounds, a potential abuse of the judicial system. ¹ The rule provides that a court should dismiss a petition if "it is apparent ... that the legality or constitutionality of [the petitioner's] confinement has already been adjudged in [prior habeas corpus or other similar] proceedings."

This Court recently construed rule 65B(i)(2) in Hurst v. Cook, 777 P.2d 1029 (Utah 1989):

A ground for relief from a conviction or sentence that has once been fully and fairly adjudicated on appeal or in a prior habeas proceeding should not be readjudicated unless it can be shown that there are "unusual circumstances." For example, a prior adjudication is not a bar to reexamination of a conviction if there has been a retroactive change in the law, see generally Andrews v. Morris, 677 P.2d 81 (Utah 1983); a subsequent discovery of suppressed evidence, see Gallegos v. Turner, 17 Utah 2d 273, 409 P.2d 386 (1965), or newly discovered evidence, see State v. Lafferty, 776 P.2d 631 (Utah 1989). But ordinarily, a ground for setting aside a conviction or sentence may not be relitigated.

Id. at 1036. The list of "unusual circumstances" in Hurst is not exhaustive, but this case would not fall into any extension of that category. The double jeopardy claim presented to Judge Rokich in the rule 65B(i) petition was exactly the same as the one denied by Judge Daniels in Candelario's first habeas corpus petition. ² Judge Rokich's dismissal was therefore correct, although his reliance on res judicata was unnecessary; he could simply have...