Jenkins v. The Honorable A. Lynne Payne et al

Lynn A. Jenkins,
Petitioner,

v.

The Honorable A. Lynne Payne and The Eighth Judicial District Clerk of the Court,
Respondents.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981432-CA

F I L E D
(February 25, 1999)

1999 UT  App 058 -----

Original Proceeding in this Court

Attorneys:
Lynn A. Jenkins, Bountiful, Petitioner Pro Se
Brent M. Johnson, Salt Lake City, for Respondents

-----

Before Judges Bench, Billings, and Orme.

PER CURIAM:

Jenkins has filed a notice of appeal with this court by which he seeks to appeal, to the Utah Supreme Court, our December 21, 1998, order denying his request to change the date of entry of our September 23, 1998, order denying his petition for extraordinary relief. However, Utah R. App. P. 45 requires that "[u]nless otherwise provided by law, the review of a judgment, an order, and a decree (herein referred to as "decisions") of the Court of Appeals shall be initiated by a petition for a writ of certiorari to the Supreme Court of Utah." (Emphasis added.) Jenkins fails to cite to any law which would allow him to appeal our December 21st decision, as a matter of right, and by any means other than by filing a petition for writ of certiorari,(1) and we are unaware of any such law or rule.

Neither the Utah Rules of Appellate Procedure nor the statutes governing jurisdiction of the Utah Supreme Court or the Utah Court of Appeals provide for any appeal of right from this court to the supreme court. See Utah R. App. P. 3, 4; Utah Code Ann. § 78-2-2, -2a-3, -2a-4. Utah R. App. P. 3(a) states that "[a]n appeal may be taken from a district or juvenile court to the appellate court with jurisdiction over the appeal . . . by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4." Rule 4(a) provides that "[i]n a case in which an appeal is permitted as a matter of right from the trial court to the appellate court, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court." Both rules make a distinction between the trial court and the appellate court, only allow notices of appeal to be filed when contesting district or juvenile court decisions, and neither say that this court may be considered a "trial court" for purposes of appeal. Similarly, the jurisdictional statute of the Utah Supreme Court does not allow Jenkins to appeal our decision by a notice of appeal. Utah Code Ann. § 78-2-2(3)(a) states that "[t]he Supreme Court has appellate jurisdiction, including jurisdiction of interlocutory appeals, over a judgment of the Court of Appeals." However, the means of appealing a decision of this court is by filing a petition for writ of certiorari and "the Supreme Court has sole discretion in granting or denying a petition for writ of certiorari for the review of a Court of Appeals adjudication." Utah R. App. P. 45; Utah Code Ann. § 78-2-2(5). This is made clear by Utah Code Ann. § 78-2a-4 which specifically states that "[r]eview of the judgments, orders, and decrees of the Court of Appeals shall be by petition for writ of certiorari to the Supreme Court." (Emphasis added.)
 

Since Jenkins's only method of appealing our decision is by filing a petition for writ of certiorari, we treat his notice of appeal as a petition for writ of certiorari and hereby transfer it to the Utah Supreme Court. However, in so doing, we make no

determination concerning whether the "petition" was timely filed or in the proper form. See Utah R. App. P. 48, 49.
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Judith M. Billings, Judge
 
 

______________________________
Gregory K. Orme, Judge

1. We recognize that on one prior occasion, in case no. 961101, Jenkins filed a notice of appeal as a means of appealing our April 11, 1996, order denying his petition for extraordinary relief. The notice of appeal was filed in this court and, for unknown reasons, it was processed as an appeal of right and was acted on by the Utah Supreme Court even though it was not an appropriate appeal. Since the action taken in case no. 961101 was an aberration and was not in keeping with the Utah Rules of Appellate Procedure or jurisdictional statutes, we will not rely upon that case to govern the proper course of action in this case. We would note that this statement in no way gives Jenkins the authority to contest what was done in case no. 961101-CA and no. 960232-SC.