State of Utah v. Walker

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Lee Walker,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000131-CA

F I L E D
May 18, 2000
  2000 UT App 148  -----

Fifth District, St. George Department
The Honorable G. Rand Beacham

Attorneys:
Harold J. Dent Jr., St. George, for Appellant
Jan Graham and Laura B. Dupaix, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Orme.

PER CURIAM:

This matter is before the court on its own motion for summary disposition on the ground that the notice of appeal was not timely filed. We dismiss the appeal.

A notice of appeal shall be filed with the clerk of the trial court within thirty days of entry of the order appealed from. See Utah R. App. P. 4(a). Under this rule, the latest possible date on which appellant could have filed his notice of appeal from the January 14, 2000, order was February 14, 2000. The notice of appeal was not filed until February 15th, and, therefore, is untimely. This court lacks jurisdiction over an untimely appeal, and, accordingly, must dismiss the appeal. See Glezos v. Frontier Inv., 896 P.2d 1230, 1233 (Utah Ct. App. 1995).

Appellant asserts that the notice of appeal is timely with respect to the amended order entered March 1, 2000, which order, he argues, replaced the January 14th order. The amended order does not enlarge the time for appeal, however, because it does not change the substance or character of the original order.

"[W]here a belated entry merely constitutes an amendment or modification not changing the substance or character of the judgment, such entry is merely a nunc pro tunc entry which relates back to the time the original judgment was entered, and does not enlarge the time for appeal; but where the modification or amendment is in some material matter, the time begins to run from the time of the modification or amendment."

Nielson v. Gurley, 888 P.2d 130, 132 (Utah Ct. App. 1994) (citation omitted). In Nielson, the amended order clarifying that the prevailing party was entitled to costs in addition to the attorney fees already awarded was deemed of insufficient importance to change the character of the judgment, and did not create a new judgment for purposes of determining the timeliness of the appeal. See id. at 133. Similarly, the March 1st order, which merely adds an identification of the parties and their attorneys, does not affect the substantive rights of the parties or change the character of the judgment. Accordingly, it does not create a new judgment for purposes of determining the timeliness of the notice of appeal. The time in which appellant could appeal started to run from the date of the original judgment, rendering the notice of appeal untimely.
 
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 
 

______________________________
James Z. Davis, Judge
 
 
 
 
 

______________________________
Gregory K. Orme, Judge