Goff v. Harding, Sr.

----ooOoo----

Roger Becker Goff,
Petitioner,

v.

Honorable Ray M. Harding, Sr.,
Respondent.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000046-CA

F I L E D
March 30, 2000
  2000 UT App 88 -----

Original Proceeding in this Court

Attorneys:
Roger Becker Goff, Orem, Petitioner Pro Se
Brent M. Johnson, Salt Lake City, for Respondent

-----

Before Judges Jackson, Bench, and Billings.

PER CURIAM:

This Petition for Extraordinary Writ in the Nature of Mandamus was transferred by the Utah Supreme Court on February 24, 2000 with instructions "to treat [the petition] as an appeal of the denial of a certificate of probable cause under Rule 27(c) of the Utah Rules of Criminal Procedure, in connection with the defendant's appeal pending before" this court.

Petitioner contends that (1) the trial court erred in denying his application for certificate of probable cause, and (2) this court lacks jurisdiction over his direct appeal because the district court did not enter orders denying timely post-trial motions. Based upon a review of the record, the motion for new trial was premature and therefore untimely under State v. Vessey, 957 P.2d 1239, 1240 (Utah Ct. App. 1998). An untimely motion for new trial does not toll the time for appeal under Utah Rule of Appellate Procedure 4(b). See id. Even if the motion is construed as a timely motion to arrest judgment under Utah Rule of Criminal Procedure 23, the motion does not operate to toll the time for appeal under Rule 4(b). In a February 22, 2000 order entered in the direct appeal (Case No. 990722-CA), this court also rejected a claim that the court lacked jurisdiction over the appeal. We conclude that the appeal was timely taken from the final judgment and sentence.

Based upon the order of the Utah Supreme Court directing that the petition shall be treated as an appeal from the denial of an application for certificate of probable cause, we consider the merits of the appeal.(1) Petitioner contends the district court did not properly rule upon the application because it did not make appropriate written findings of fact and conclusions of law. He also claims that because the State did not file a timely objection, the certificate of probable cause should have been granted by default. Utah Rule of Criminal Procedure 27 contains no provision for granting a certificate by default, stating: No certificate of probable cause shall issue and the defendant shall be detained unless the appropriate court finds that the appeal: (1) is not being taken for the purposes of delay; and (2) raises substantial issues of law or fact reasonably likely to result in reversal, an order for a new trial or a sentence that does not include a term of incarceration in jail or prison. Utah R. Crim. P. 27(f). The trial court did not enter a written order, but did make an oral ruling denying the application because petitioner did not demonstrate that the appeal raised any issue likely to result in reversal. See Utah R. Civ. P. 52(a) (authorizing trial court to make oral findings and conclusions stated in record).

Based upon review of each issue raised in the application for certificate of probable cause, we affirm the district court's denial of the application because petitioner did not demonstrate that the appeal "raises substantial issues of law or fact reasonably likely to result in reversal, an order for new trial or a sentence that does not include a term of incarceration in jail or prison." Utah R. Crim. P. 27(f)(2).

We deny the petition for extraordinary relief, and affirm the district court's denial of the application for certificate of probable cause.
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
Judith M. Billings, Judge

1. Under Rule 27(c), Utah Rules of Criminal Procedure, "[i]f release is denied, any appeal shall be accompanied by an affidavit made and signed by counsel for the defendant, or by the defendant if the defendant is not represented by counsel" containing the information specified by the rule. Given the supreme court's order, and the fact that the record on appeal has been filed, we proceed to determine the appeal from the denial of the certificate of probable cause.