O'Brien v. Krek

----ooOoo----

Kallie O'Brien,
Petitioner and Appellant,

v.

Cathy Krek, Clerk of Woods Cross Justice Court;
Woods Cross Justice Court; and Sheriff of Davis County,
Respondents and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000231-CA
F I L E D
April 12, 2001 2001 UT App 121 -----

Second District, Farmington Department
The Honorable Michael G. Allphin

Attorneys:
John R. Bucher, Salt Lake City, for Appellant
David J. Peters and D. Michael Nielsen, Bountiful, for Appellees

-----

Before Judges Greenwood, Jackson, and Davis.

PER CURIAM:

This case is before the court on appeal from a district court order denying appellant's request for an automatic stay of her sentence. We derive jurisdiction from Utah Code Ann. § 78-2a-3(2)(f) (1996).

Appellant pleaded guilty to several misdemeanor offenses in justice court. She filed a notice of appeal seeking a trial de novo in district court in each of the four cases. The justice court clerk deleted one of the case numbers from the notice of appeal. Appellant then filed a petition for extraordinary writ in the district court, seeking to reinstate the stricken appeal and to be released from jail pending her new trial. The district court granted the petition in part, reinstating the stricken appeal and ruling that appellant's incarceration on the charges in that case was unlawful. The court ruled, however, that appellant was required to obtain a certificate of probable cause in compliance with rule 27 of the Utah Rules of Criminal Procedure to obtain release from jail in the other cases.

Appellant contends that to the extent that Utah Rule of Judicial Administration 4-608(2)(C) requires her to comply with rule 27, the rule violates due process. She argues that because Utah Rule of Judicial Administration 4-803(2)(E) provides that judgments in small claims actions are automatically stayed on appeal, sentences from justice court criminal proceedings should likewise be stayed while an appeal is pending. She further claims that compliance with rule 27 is impossible because there is no factual record in an appeal from justice court. Finally, she asserts that compliance with rule 27 would "probably" require disclosure of privileged information.

We find no due process violation in the fact that the rules treat dissimilar proceedings differently. Criminal convictions are fundamentally different from small claims judgments. In an appeal from a justice court criminal conviction, there is good reason for the district court to assess the merits of the appeal and examine the offender's suitability for release before releasing the offender from jail.

Appellant's other claims are also unpersuasive. At the trial court level, an application for a certificate of probable cause does not require a recitation of facts developed at trial. Rather, the application must be supported by a memorandum identifying the issues on appeal and supporting the appellant's position that those issues raise a substantial question of law or fact reasonably likely to result in reversal, an order for a new trial, or a sentence that does not include a jail or prison term. See Utah R. Crim. P. 27(d)(2). We can see no reason why compliance with the rule would require counsel to reveal confidential information in order to state why he believes that it is reasonably probable that a trial de novo will result in acquittal or a sentence not involving incarceration.

The order of the district court is affirmed.
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 

Norman H. Jackson,
Associate Presiding Judge -----

I DISSENT:
 
 

______________________________
James Z. Davis, Judge