STATE EX REL. CORTEZ v. BENTLEY, 457 So.2d 1072 (Fla.App. 2 Dist. 1984)

STATE EX REL. ALFONSO CORTEZ, PETITIONER, v. THE HONORABLE E. RANDOLPH BENTLEY, AS CIRCUIT JUDGE OF THE TENTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, RESPONDENT.

No. 84-937.District Court of Appeal of Florida, Second District.
July 20, 1984.

Page 1073

Robert Lee Dennis of Dennis Dunn, Okeechobee, for petitioner.

Jim Smith, Atty. Gen., Tallahassee and Gary O. Welch, Asst. Atty. Gen., Tampa, for respondent.

RYDER, Chief Judge.

Petitioner seeks a writ of certiorari, or in the alternative, a writ of mandamus commanding the trial court to show cause and to appoint counsel at public expense to represent the petitioner during his appeal of the trial court’s denial of his motion to vacate judgment and sentence. Fla.R. Crim.P. 3.850.

Mandamus denied. A writ of mandamus “is by nature a discretionary writ which issues only upon the showing of a clear legal right in the relator to the performance of an indisputable legal duty by the respondent.” State ex rel. Eichenbaum v. Cochran, 114 So.2d 797, 800 (Fla. 1959). See also Heath v. Becktell, 327 So.2d 3, 4 (Fla. 1976). The writ is used to enforce “a clear legal right to the performance of clear legal duty rather than to establish such a right.” State v. Gamble, 339 So.2d 694, 695 (Fla. 2d DCA 1976).

Certiorari denied. See Graham v. State, 372 So.2d 1363, 1365-66 (Fla. 1979) and Hooks v. State, 253 So.2d 424, 426 (Fla. 1971), cert. denied, 405 U.S. 1044, 92 S.Ct. 1330, 31 L.Ed.2d 587 (1972).

SCHEB and OTT, JJ., concur.