State of Utah v. Friedman

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Randell L. Friedman,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010095-CA

F I L E D
September 7, 2001 2001 UT App 265 -----

Seventh District, Castle Dale Department
The Honorable Bryce K. Bryner

Attorneys:
David O. Drake, Salt Lake City, for Appellant -----

Before Judges Jackson, Bench, and Thorne.

PER CURIAM:

This case is before the court on a sua sponte motion for summary dismissal for lack of jurisdiction.

Appellate review of cases originating in justice court is limited by Utah Code Ann. § 78-5-120 (Supp. 2000), which states, in relevant part, that the district court's judgment "may not be appealed unless the court rules on the constitutionality of a statute or ordinance." This court has consistently dismissed direct appeals of cases originating in justice court unless the appeal satisfies the jurisdictional prerequisite that a further appeal may be taken to this court only from district court orders that rule on the constitutionality of a statute or ordinance. Both Dean v. Henriod, 1999 UT App 50, 975 P.2d 946 (Utah Ct. App. 1999), and State v. Hinson, 966 P.2d 1273 (Utah Ct. App. 1998), apply the limitation on this court's jurisdiction.

Contrary to Friedman's assertion that Dean is inapposite, the case is controlling. In Dean, the petitioner requested a trial de novo in district court following a conviction after a bench trial in justice court. See Dean, 1999 UT App. at ¶2. The district court dismissed the appeal on procedural grounds, and Dean filed a petition for extraordinary relief in this court. See id. at ¶3. We concluded that (1) no right of appeal existed under section 78-5-120 from an order dismissing the appeal, and (2) because Dean had no right to appeal, an extraordinary writ petition "provides the . . . sole means to obtain a plain, speedy and adequate remedy for the district court's alleged abuse of discretion." Id. at ¶8. Accordingly, this court agreed that Dean's pursuit of an extraordinary writ was procedurally correct, given the unavailability of further direct appeal under section 78-5-120. Id. Similarly, Friedman's proper remedy in this case is a petition for extraordinary relief filed under Rule 19 of the Utah Rules of Appellate Procedure and Rule 65B of the Utah Rules of Civil Procedure naming the district court judge as respondent and complying with the substantive requirements of the rules.

Hinson is consistent with Dean and does not alter the statutory jurisdictional prerequisites for an appeal to this court. Hinson also supports dismissal of this appeal. In Hinson, we addressed the following issues: (1) "whether a defendant who initially pleaded guilty in justice court may appeal to the district court pursuant to section 78-5-120" and (2) "if so . . . whether this court has jurisdiction to review the district court's dismissal of the case." Hinson, 966 P.2d at 274. The latter issue is pertinent to the sua sponte motion. We determined in Hinson that the district court had jurisdiction to hold a trial de novo, notwithstanding the defendant's guilty plea in justice court. Id. at 276. However, our ultimate holding in Hinson was that "absent an issue regarding the constitutionality of a statute or ordinance, the decision of the district court is final;" therefore, we lacked jurisdiction to consider the State's appeal from the district court's dismissal of the information. Id. at 277-78.

Hinson is entirely consistent with Dean in its application of the jurisdictional limits on this court's review of cases originating in justice courts. Although Hinson suggests that the district court in this case may have erred in construing section 78-5-120 as requiring dismissal of the appeal from that court, this court is precluded by statute from reviewing that decision on a direct appeal. Friedman's sole means to obtain review of the district court's dismissal is a petition for extraordinary relief, initiated as an original proceeding in this court under the appropriate procedural rules.

We dismiss the direct appeal for lack of jurisdiction, without prejudice to Friedman's filing a petition for extraordinary relief.
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 

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Russell W. Bench, Judge
 

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William A. Thorne, Jr., Judge