West Valley City v. Elkins

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West Valley City,
Plaintiff and Appellee,

v.

Erminio Joe Elkins,
Defendant and Appellant
MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981528-CA

F I L E D
December 3, 1998
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Third District, West Valley Department
The Honorable Anthony B. Quinn

Attorneys:
L. Bruce Larsen, Salt Lake City, for Appellant
J. Richard Catten, Salt Lake City, for Appellee

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Before Judges Billings, Jackson, and Orme.

PER CURIAM:

District court case no. 941004412 was dismissed by West Valley City on March 7, 1996, in exchange for Elkins's change of plea, from guilty to no contest, in case no. 941004411. On January 26, 1998, in district court case no. 941004411, Elkins was determined to have violated his probation and was ordered to serve a jail sentence. He filed notices of appeal in district court case no. 941004411 and case no. 941004412 on August 26, 1998. Since case no. 941004412 had already been dismissed, the notice of appeal was of no effect and because the notice of appeal in district court case no. 941004411 was filed late, this court is without jurisdiction to consider Elkins's appeal. Pursuant to Utah R. App. P. 4 a notice of appeal must be filed with the trial court "within 30 days after the date of entry of the judgment or order appealed from." To appeal the January 26, 1998, order, Jenkins would have had to file his notice of appeal by February 25, 1998. Instead, he did not file his notice of appeal until seven months later.

Any attempt by Elkins to contest his underlying sentence in district court case no. 941004411 or no. 941004412 is not properly before us since Elkins did not file a motion objecting to his sentence with the trial court. Elkins filed a "motion for review of sentence" in district court case no. 941004413 which is not the subject of this appeal. 1

Accordingly, we are without jurisdiction to consider Elkins's appeal and have no alternative but to dismiss the appeal for lack of jurisdiction. Our dismissal for lack of jurisdiction renders moot Elkins's motion for voluntary dismissal.
 

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Judith M. Billings, Judge
 

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Norman H. Jackson, Judge
 

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Gregory K. Orme, Judge

1. Elkins filed a notice of appeal in district court case no. 941004413 on September 15, 1998, but the trial court has not yet forwarded that notice of appeal to us and, thus, we have not opened a case concerning Elkins's attempted appeal of district court case no. 941004413. Elkins mistakenly attached documents from district court case no. 941004413, rather than from district court case no. 941004411 and no. 941004412, to his docketing statement in the subject appeal.