State of Utah v. Spainhower

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Gary Wayne Spainhower,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971727-CA

F I L E D
December 30, 1999
  1999 UT App 384 -----

Fifth District, Cedar City Department
The Honorable J. Philip Eves

Attorneys:
D. Bruce Oliver, Salt Lake City, for Appellant
Jan Graham and Catherine M. Johnson, Salt Lake City, for Appellee

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Before Judges Greenwood, Jackson, and Orme.

ORME, Judge:

The trial court did not err when it denied defendant's motion to dismiss and revoked his probation. Judge Eves, in an advantaged position concerning local practice, determined that the docket entry was inadequate evidence that defendant's probation had been terminated, particularly in light of the fact that no formal order terminating probation was ever issued. The cryptic transcript received in accordance with our request does not undercut this view, and we defer to the court's finding.

The trial court also properly concluded that defendant's probation had not expired before the issuance of the Order to Show Cause and bench warrant. Defendant's probation was set to expire at 11:59 p.m. on April 1, 1997. The March 25, 1997 bench warrant and the April 1, 1997 Order to Show Cause both issued prior to that time.(1) The running of defendant's probationary period was therefore tolled and the jurisdiction of the trial court over him was extended pending adjudication of the Order to Show Cause.(2)

Finally, defendant failed to substantiate his claim that he never received notice of the terms and conditions of his probation.

Affirmed.
 
 
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 
 
 

______________________________
Norman H. Jackson, Judge

1. We conclude the affidavit was sufficient notwithstanding its failure to specifically identify which witness defendant had impermissibly contacted.

2. In determining whether jurisdiction over defendant was proper, the trial court did not improperly shift any burden of proof to defendant. The court merely ruled based on the evidence presented by both sides.