State of Utah v. Bird

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Richard Bruce Bird,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010169-CA

F I L E D
November 8, 2001 2001 UT App 333 -----

Third District, Salt Lake Department
The Honorable J. Dennis Frederick

Attorneys:
Joan C. Watt and Andrea J. Garland, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee -----

Before Judges Greenwood, Jackson, and Davis.

PER CURIAM:

Appellant Richard Bruce Bird appeals the sentence on his conviction of Attempted Possession of a Controlled Substance, a class A misdemeanor. This case is before the court on appellant's motion for summary disposition.

Appellant raises the same issues regarding sentencing in absentia that this court previously determined in State v. Wanosik, 2001 UT App 241, 31 P.3d 615. Consequently, appellant is entitled to be resentenced because the trial court made no inquiry to establish if defendant's absence was in fact voluntary. See id. at ¶23.

The State seeks dismissal of the appeal based upon the fact that appellant remains a fugitive from justice. See State v. Tuttle, 713 P.2d 703, 705 (Utah 1985). However, Wanosik is dispositive of this appeal and requires us to remand for resentencing. If appellant appeals the sentence imposed after remand, the State is free to raise the dismissal argument based on Tuttle in the subsequent appeal. See State v. Samora, 2001 UT App 266,¶3 & n.1, 429 Utah Adv. Rep. 28 (per curiam).

Accordingly, we grant the motion for summary disposition, vacate the sentence, and remand for resentencing in accordance with Wanosik.
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 

______________________________
James Z. Davis, Judge