Opinion
OP 23-0221
04-25-2023
DAVID CAVES, Petitioner, v. FIRST JUDICIAL DISTRICT COURT, HONORABLE KATHY SEELEY, Presiding, Respondent.
ORDER
Representing himself, Petitioner David Caves has filed a petition for a writ of mandate, utilizing this Court's writ of habeas corpus form. Caves contends that he has been subjected to a pre-trial delay in violation of his constitutional right to a speedy trial. He states that he "makes this application to this [C]ourt instead of the lower court because the lower court refuses to [accept] his Pro-Se motion for review of the Statep ]s inability to timely produce this Petitioner for trial[.]" Caves requests that this Court order the District Court to entertain his motions. We amend the caption to indicate the District Court and presiding Judge. Section 27-26-102(1), MCA.
A writ of mandamus, also known as mandate, is specific and statutorily driven. To state a claim for mandamus, a party must show entitlement to the performance of a clear legal duty by the party against whom the writ is directed and the absence of a plain, speedy, and adequate remedy at law. Section 27-26-102. MCA; Smith v. Missoula Co., 1999 MT 330, ¶ 28. 297 Mont. 368, 992 P.2d 834.
Caves's pleading is deficient. He has not provided an affidavit as required by § 27-26-201, MCA. He has not served the District Court with a copy of the Petition. Section 27-26-205, MCA. Caves has not met all elements for a writ to issue. Section 27-26-102, MCA. He has a "plain, speedy, and adequate remedy in the ordinary course of law." Section 27-26-102(2), MCA. Caves has the remedy of appeal concerning any speedy trial violation or delay in his criminal proceeding. We conclude that Caves is not entitled to a writ of mandamus. Smith, ¶ 28. Accordingly, H IS ORDERED that Caves's Petition for a Writ of Mandamus is DENIED and DISMISSED.
The Clerk of the Supreme Court is directed to provide a copy of this Order to: the Honorable Kathy Seeley. First Judicial District Court, along with a copy of Caves's Petition; Angie Sparks, Clerk of District Court, under Cause No. CDC-2022-0328; Mary-Barry, Lewis and Clark Deputy County Attorney; Victor Bunitsky, Defense Counsel; counsel of record, and David Caves personally.