State of Utah v. Yurko

State of Utah v. Yurko, No. 981335-CA, Filed October 22, 1998  
IN THE UTAH COURT OF APPEALS
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MEMORANDUM DECISION
(Not For Official Publication)

State of Utah,
Plaintiff and Appellee,

v.

Mike Albert Yurko, Jr.,
Defendant and Appellant.

Case No. 981335-CA

F I L E D
October 22, 1998
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Fifth District, St. George Department
The Honorable G. Rand Beacham

Attorneys:
Kenneth L. Coombs, St. George, for Appellant
Jan Graham and Norman E. Plate, Salt Lake City, for Appellee

----- Before Judges Wilkins, Jackson, and Orme.

PER CURIAM:

Appellant Mike Albert Yurko, Jr. appeals from his conviction of Burglary of a Building, a third degree felony, and of Theft, a class A misdemeanor. This case is before the court on a sua sponte motion for summary affirmance.

Yurko asserts two issues. First, he contends his guilty plea was not voluntary. Second, he contends the trial court abused its discretion in granting only two weeks credit for time served.(1)

The State correctly notes that Yurko failed to file a motion to withdraw his guilty plea and the time for making a motion under Utah Code Ann. 77-13-6(2) (1995) has expired. In order to appeal, a defendant must first move to withdraw his guilty plea. See State v. Gibbons, 740 P.2d 1309, 1311-12 (Utah 1987). The guilty pleas in this case are subject to the thirty-day time limit of section 77-13-6(2) for making a motion to withdraw a guilty plea. The affidavit filed in advance of Yurko's guilty plea establishes he was advised of the time limit. See State v. Price, 837 P.2d 578, 583 (Utah Ct. App. 1992) (If a defendant is advised of the deadline when the guilty plea is entered, the trial court lacks jurisdiction to consider a motion to withdraw filed after the thirty-day period.)

Although Yurko may appeal based upon claimed errors in sentencing, the issue regarding credit for time served is not appropriately before the court in this appeal. Yurko was sentenced in Case No. 951501228, which is the subject on this appeal, and in Case No. 951501229, in the same hearing. The present appeal is taken only from Case No. 951501228, which involves the felony conviction of burglary of a building and a related misdemeanor theft conviction. The sentence that included credit for time served was in Case No. 951501229, which involved misdemeanor convictions for attempted burglary and attempted theft. The sentencing transcript and the judgment in this case, make it clear that the allowance for credit for time served was not made in the case being appealed. Although the two cases were joined for sentencing, Yurko filed a notice of appeal only in Case No. 951501228.

We affirm the judgment based upon the absence of any appealable issues.
 

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Michael J. Wilkins, Associate Presiding Judge
 

______________________________
Norman H. Jackson, Judge
 

______________________________
Gregory K. Orme, Judge

1. After entry of his guilty plea, Yurko absconded and was missing from the jurisdiction for approximately nine months. He was returned to Utah on May 1, 1998 and was sentenced two weeks later on May 14, 1998.