Ricky L. Scott v. Honorable L.T. Simes, Circuit Judge

ARKANSAS SUPREME COURT

No. CR 05-116

NOT DESIGNATED FOR PUBLICATION

RICKY L. SCOTT

Petitioner

v.

HON. L. T. SIMES, CIRCUIT JUDGE

Respondent

Opinion Delivered September 29, 2005

PRO SE PETITION AND AMENDED PETITIONS FOR WRIT OF MANDAMUS AND MOTION FOR APPOINTMENT OF COUNSEL [CIRCUIT COURT OF CROSS COUNTY, CR 96-61]

PETITION AND AMENDED PETITIONS FOR WRIT OF MANDAMUS MOOT; MOTION FOR APPOINTMENT OF COUNSEL DENIED

PER CURIAM

In 1998, Ricky L. Scott was found guilty of murder in the first degree and sentenced to life imprisonment. We affirmed. Scott v. State, 337 Ark. 320, 989 S.W.2d 891 (1999).

On January 31, 2005, Scott filed a pro se petition for writ of mandamus in this court, contending that the Honorable L. T. Simes, Circuit Judge, had failed to act in a timely manner on two pro se pleadings filed in the Circuit Court of Cross County: a motion for return of seized property filed December 1, 2000; and a motion to set aside judgment pursuant to Act 1780 of 2001 filed October 7, 2004. On February 11, 2005, Judge Simes contacted a staff attorney for this court, explaining that the delay in acting on the motion for return of seized property was caused by the failure of petitioner Scott to make the court aware of the motion. He further said that a system had recently been instituted whereby the circuit clerks in the judicial district would promptly make judges aware of pleadings. An order was entered on February 15, 2005, setting the two pleadings for hearing on March 11, 2005, and also appointing counsel for petitioner.

On March 23, 2005, petitioner amended the mandamus petition. He said in the amendment that at the hearing Judge Simes had relieved the attorney appointed to represent him and that he had subsequently filed on February 22, 2005, a motion for appointment of another attorney. He alleged that the motion for appointment of counsel had not been acted on in a timely fashion and asked that the motion be included in his request for a writ of mandamus. On March 28, 2005, Judge Simes denied the motion for appointment of counsel.

A second hearing was held on petitioner's motion for return of seized property and motion to set aside sentence on July 29, 2005. An order was entered on that day disposing of both motions and all other motions filed by petitioner that were pending in Judge Simes's court.

On August 18, 2005, petitioner filed a second amendment to the mandamus action in this court, challenging the correctness of the trial court's decision entered July 29, 2005, and seeking another hearing in the trial court. He also filed on that day a motion asking that this court appoint an attorney to represent him on the mandamus petition, arguing that he needed an attorney because Judge Simes had entered into an on-going conspiracy with the prosecution and others to deprive him of his constitutional rights and that the alleged misconduct had denied him a fair trial in 1998.

As a final order has been entered on the three pleadings which were the subject of the petition and amended petitions for writ of mandamus, the petition and amended petitions are moot. With respect to the motion for appointment of counsel, there is no cause to appoint an attorney where the purpose of the mandamus action has been accomplished; that is, the court has acted on the matters before it which were the subject of the mandamus action.

While it is apparent that petitioner desires to utilize mandamus as an all-encompassing legal remedy, mandamus does not provide a means for petitioner to challenge the original judgment of conviction in his case or the merit of either the court's rulings on the motion for return of seized property or the motion to set aside judgment pursuant to Act 1780 of 2001.

The purpose of a mandamus action is to enforce an established right or to enforce the performance of a duty. Smith v. Fox, 357 Ark. ----, --- S.W.3d ---- (September 16, 2004). A writ of mandamus is issued by this court only to compel an official or judge to take some action. Manila School Dist. No. 15 v. Wagner, 356 Ark.----, --- S.W.3d ---- (April 15, 2004). When requesting a writ of mandamus, a petitioner must show a clear and certain right to the relief sought and the absence of any other adequate remedy. Id. A mandamus action is not a substitute for appeal, and a petitioner is not entitled to a writ of mandamus from this court to compel the lower court to make a particular ruling to change a prior ruling.

Petition and amended petitions moot; motion for appointment of counsel denied.