State of Utah v. Summerhays

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Scott H. Summerhays,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010198-CA

F I L E D
May 24, 2001 2001 UT App 169 -----

Third District, Salt Lake Department
The Honorable Ann Boyden

Attorneys:
Scott H. Summerhays, Gunnison, Appellant Pro Se

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Before Judges Greenwood, Billings, and Davis.

PER CURIAM:

Appellant Scott Summerhays (Summerhays) appeals the trial court's order denying his motion to vacate the order of commitment.

On November 30, 2000, this court entered a memorandum decision in Case No. 20000484, in which it dismissed Summerhays's appeal for lack of jurisdiction because the trial court had not entered a final judgment or sentence. Summerhays was trying to appeal from the sentence imposed upon him following revocation of his probation, but all that the trial court file contained was a May 1, 2000, "Commitment After Judgment," which is not a final, appealable order.(1) In criminal cases, the sentence itself is the final judgment from which an appeal can be taken. See State v. Gerrard, 584 P.2d 885, 886 (Utah 1978).

Instead of obtaining a final judgment so that he could appeal from his sentence, Summerhays moved to vacate the order of commitment. The trial court denied Summerhays's motion to vacate, concluding, among other things, that there is "no legal basis for vacating the Commitment." We agree with the trial court and affirm its denial of Summerhays's motion to vacate.

However, because there is no judgment signed by the court, this matter is remanded to the trial court for entry of a final judgment nunc pro tunc so that Summerhays may file a timely notice of appeal from the judgment and contest his sentence, if he wishes, as he attempted to do in his earlier appeal, Case No. 20000484.
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 

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James Z. Davis, Judge

1. In our earlier decision, we concluded that the Commitment After Judgment could not serve as a judgment because it does not contain an order sentencing appellant and merely commands any peace officer to take appellant into custody "based upon" a judgment and sentence.