DocketNumber: No. 556844
Citation Numbers: 2001 Conn. Super. Ct. 5879
Judges: PURTILL, JUDGE TRIAL REFEREE. CT Page 5880
Filed Date: 5/4/2001
Status: Non-Precedential
Modified Date: 4/17/2021
By way of relief, in the first count, plaintiff requests that defendant make him eligible for release to supervised home release. Pursuant to the second count, plaintiff seeks credit for eighteen months of jail credit.
Defendant has filed a pleading entitled "Motion to Dismiss/Strike" addressed to both counts. As plaintiff has labeled his complaint a mandamus action and it will be considered as such. Defendant's motion will be considered as a motion to dismiss.
A party seeking a writ of mandamus must establish: (1) that the plaintiff has a clear legal right to the performance of the duty by the defendant; (2) that the defendant has no discretion with respect to the performance of that duty; and (3) the plaintiff has no adequate remedy at law. Hennessey v. Bridgeport,
Even if C.G.S. § 18-bob had not been amended, plaintiff still would not have been entitled to a writ of mandamus. As written before the amendment the statute stated that the defendant "may release prisoners to approved community residences." Since defendant had discretion in the matter, even if the statute had not been amended it could not be found that petitioner had a clear legal right to the requested action by the commissioner.
It must then be concluded that the first count must be dismissed. CT Page 5881
The motion to dismiss is similar to the former plea in abatement in that matters affecting jurisdiction not apparent on the record may be considered. Connecticut Practice Book § 10-31a allows the filing the affidavits in support of the motion to dismiss.
Defendant has filed the affidavit of Michelle DeVeau, a Record Specialist II in the employ of the Department of Correction in support of the motion to dismiss. From this affidavit, the attached correspondents and the complaint it must be found that on May 1, 2000, petitioner began serving an eight year sentence. Prior to that time, he was released on bond or was held in custody for federal authorities.
Under the terms of C.G.S. §
It is clear that petitioner has no clear legal right to the performance, by defendant, of the legal duty alleged in the complaint. Therefore, the second count must be dismissed.
Accordingly, the motion to dismiss the complaint is granted.
Joseph J. Purtill, Judge Trial Referee