State of Utah v. Green

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Thomas A. Green,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010076-CA

F I L E D
April 19, 2001 2001 UT App 131 -----

Fourth District, Nephi Department
The Honorable Donald J. Eyre, Jr.

Attorneys:
John R. Bucher, Salt Lake City, for Appellant
Mark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee

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Before Judges Greenwood, Billings, and Orme.

PER CURIAM:

Appellant Thomas Green seeks to appeal as a matter of right from an order, entered in a pending criminal proceeding, which determined that a legal and valid marriage existed between Green and Linda Kunz under Utah Code Ann. § 30-1-4.5 (1999). The appeal is before the court on a sua sponte motion for summary dismissal for lack of jurisdiction.

The district court's July 10, 2000 Memorandum Decision ruled that a valid and legal marriage had existed from November of 1995, and also concluded that probable cause existed to bind Green over on four counts of bigamy.(1) The order filed on December 28, 2000, from which this appeal is taken, incorporated and summarized this ruling, apparently for purposes of using the "order" as a trial exhibit. Green filed a notice of appeal, arguing that the order was appealable because it determined the issue of the existence of the marriage with finality.

Both this court and the Utah Supreme Court have consistently applied the final judgment rule. See Bradbury v. Valencia, 2000 UT 50,¶10, 5 P.3d 649. "To be final, the trial court's order or judgment must dispose of all parties and claims to an action." Id. An appeal must be taken from a final judgment, unless it is allowed under an exception to the final judgment rule. See id. at ¶9. Both the July 10, 2000 Memorandum Decision declaring a valid marriage and the order filed on December 28, 2000 incorporating the earlier ruling are interlocutory orders entered in the course of an ongoing criminal proceeding. In criminal cases, it is the sentence "which constitutes a final judgment from which appellant has the right to appeal." State v. Gerrard, 584 P.2d 885, 886 (Utah 1978). The order Green appeals is not a final judgment.

Green argues that the order is final for purposes of appeal because the intended effect of the order was to finally determine the existence of a legal and valid marriage between Green and Linda Kunz under Utah's common law marriage statute, and because the effect of the order may not be limited to the present criminal proceeding. However, both Utah appellate courts have rejected the federal collateral order doctrine as an exception to the final judgment rule. See Tyler v. Department of Human Servs., 874 P.2d 119 (Utah 1994) (per curiam); In re Southern American Ins. Co., 930 P.2d 276 (Utah Ct. App. 1996); Merit Electrical & Instrumentation v. Utah Dep't of Commerce, 902 P.2d 151 (Utah Ct. App. 1995). In addition, we note that there is no statutory or case law exception to the final judgment rule for interlocutory orders declaring a marriage to exist under section 30-1-4.5. Finally, we note that the district court's December 19, 2000 ruling on the State's first motion in limine recognized the effect of the July 10, 2000 Memorandum Decision, but further ruled that the decision did not "relieve the State from proving each element of the crime 'beyond a reasonable doubt.'" This underscores the interlocutory nature of the ruling. Green did not file a timely petition for permission to appeal from either the July 10, 2000 Memorandum Decision or the order filed on December 28, 2000. Having determined that we lack jurisdiction, we dismiss the appeal.

Green seeks, in the alternative, an order remanding the case to the district court to allow the interlocutory order to be certified as final for purposes of appeal under Rule 54(b) of the Utah Rules of Civil Procedure. We question whether certification is available in this context or could ever be appropriate given the significant, if not total, factual overlap with the remaining issues in the criminal case. See generallyKennecott Corp. v. Utah State Tax Comm'n, 814 P.2d 1099 (Utah 1991). However, we decline to temporarily remand the case for a more basic reason. A request for Rule 54(b) certification must be directed to the district court, and our dismissal is without prejudice to that court's consideration and determination of any request for certification.

We dismiss the appeal for lack of jurisdiction because it is not taken from a final judgment, and Green did not file a timely petition for permission to appeal, as required by Rule 5(a) of the Utah Rules of Appellate Procedure.(2)
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 

______________________________
Gregory K. Orme, Judge

1. The State charged Green with one count of criminal nonsupport, a third degree felony, in violation of Utah Code Ann. § 76-7-201 (1999) and four counts of bigamy, a third degree felony, in violation of Utah Code Ann. § 76-7-101 (1999). The court bound over on the criminal nonsupport charge following the preliminary hearing and bound over on the bigamy charges only after its additional determination that a legal and valid marriage existed between Green and Kunz during the relevant time.

2. Despite the State's arguments by which it seemingly seeks to have it both ways, it follows that, as with any interlocutory disposition, Green will have an opportunity to appeal the issues treated in the interlocutory orders should he be convicted and choose to appeal.