State of Utah v. Russell

State of Utah v. Russell

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Anthony Paul Russell,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)
 

Case No. 981355-CA
 

F I L E D

(January 14, 1999)
 

1999 UT App 007

 

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Third District, Salt Lake Department

The Honorable Homer F. Wilkinson

Attorneys: Manny Garcia, Salt Lake City, for Appellant

Jan Graham and Norman E. Plate, Salt Lake City, for Appellee

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Before Judges Wilkins, Bench, and Orme.

PER CURIAM:

   ¶1 Appellant Anthony Paul Russell appeals his conviction of rape, a first degree felony. This case is before the court on the State's motion to dismiss.

   ¶2 The trial court sentenced Russell on March 27, 1998, signing a document captioned "Minutes, Sentence, Judgment, Commitment" on the same date. The document was not date-stamped by the clerk; however, it was docketed in the computerized docket on March 27, 1998 and duly filed. Russell filed a notice of appeal and an amended notice of appeal, which were date-stamped as filed on April 28, 1998.

   ¶3 The State makes two alternative arguments for dismissal. First, assuming judgment was entered on March 27, 1998, the notices of appeal filed on April 28, 1998 were untimely because they were not "filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from." Utah R. App. P. 4(a). Second, the trial court record contains only a signed minute entry that is not date-stamped and cannot serve as a final judgment or order from which appellant could initiate an appeal.

   ¶4 In support of the latter argument, the State relies upon the statement in State v. Anderson, 797 P.2d 1114 (Utah Ct. App. 1990) that "entry of a time-stamped, written judgment fixes clearly on the record the date of the judgment, thereby simplifying the question of when the time begins to run for post-trial motions, filing a notice of appeal, and for any probation entered." Id. at 1115-16. Anderson reviewed the practice of some circuit courts to pronounce sentence orally without preparing a signed written judgment. As stated in Anderson, the clerk's placing of a date-stamp on the judgment serves as an indication in the record that a judgment has been "entered" in accordance with Utah R. Civ. P. 58A. That rule provides that a judgment "is complete and shall be deemed entered for all purposes, except the creation of a lien on real property," when the judgment is "signed by the judge and filed with the clerk." Utah R. Civ. P. 58A(b),(c). Although the practice of date-stamping a judgment is the preferred means to demonstrate a judgment has been filed with the clerk, it is not the sole means.

   ¶5 In this case, the document signed by the trial court clearly was intended to serve as the final judgment because it contained the sentence of the court and a commitment of the defendant to the custody of the sheriff. The trial court docket demonstrates it was "filed with the clerk" on the same date it was signed. Thus, we conclude the judgment in this case was entered on March 27, 1998. Accordingly, a notice of appeal must have been filed not later than April 27, 1998.

   ¶6 No notice of appeal was timely filed with the trial court clerk. Appellant's counsel suggests the original notice of appeal was hand-delivered prior to the expiration of the appeal time, but it may have been delayed in being date-stamped because it bore an incorrect file number. Nevertheless, this court is bound by the filing date indicated by the trial court's date-stamp and the trial court docket. See State ex rel. M.S., 781 P.2d 1287, 1288 (Utah Ct. App. 1989). In addition, we are precluded from extending the time for initiating an appeal by Utah R. App. P. 2. We note that Russell may seek relief in the district court through a petition for post-conviction relief seeking resentencing under State v. Johnson, 635 P.2d 36 (Utah 1981).

   ¶7 Accordingly, we dismiss the appeal.

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Michael J. Wilkins,

Presiding Judge

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Russell W. Bench, Judge

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Gregory K. Orme, Judge