State of Utah v. Culley

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Jamison Z. Culley,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010544-CA

F I L E D
April 18, 2002 2002 UT App 124 -----

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

Attorneys:
John R. Bucher, Salt Lake City, for Appellant
Mark Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee -----

Before Judges Bench, Orme, and Thorne.

PER CURIAM:

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

The district court entered its Sentence, Judgment, and Commitment on April 2, 1999. On June 7, 2001, Appellant filed a "Motion for Entry of Misplea and Motion to Correct A Sentence That Was Imposed In An Illegal Manner Pursuant to Rule 22(e) Utah Rules of Criminal Procedure" in which he sought a new trial or a declaration of a misplea. The district court correctly construed the motion as a motion for new trial or motion to withdraw guilty plea based upon the relief requested. A motion under rule 22(e) presumes a valid conviction and challenges only an allegedly illegal sentence or a sentence imposed in an illegal manner. See State v. Brooks, 908 P.2d 856, 860 (Utah 1995) ("A request to correct an illegal sentence under rule 22(e) presupposes a valid conviction."). The motion in this case challenged the validity of Appellant's guilty plea and resulting conviction, not the validity of the sentence alone.

The district court denied the motion for new trial/motion to withdraw guilty plea as untimely in an unsigned minute entry. Appellant filed a notice of appeal from the unsigned minute entry. In response to this court's sua sponte motion, Culley has merely filed copies of the original 1999 judgment and the unsigned minute entry and has not demonstrated any basis for our jurisdiction over the appeal.

It is well settled that an unsigned minute entry is not a final appealable order and the appeal must be dismissed for lack of jurisdiction on that basis. See, e.g., State v. Rawlings, 829 P.2d 150, 153 (Utah Ct. App. 1992) ("[A]n unsigned minute entry is not a final judgment for purposes of appeal."). In addition, Appellant did not file a timely appeal from the underlying judgment entered in this case on April 2, 1999, and Appellant's motion did not toll the time for appeal under Rule 4(b) of the Utah Rules of Appellate Procedure because it was untimely as a motion for new trial under Rule 24 of the Utah Rules of Criminal Procedure. Accordingly, entry of a signed order denying the motion will not revive an appeal of the underlying judgment.

We dismiss the appeal for lack of jurisdiction because it is not taken from a final appealable judgment and because it is untimely if construed to be an appeal from the underlying judgment.
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Gregory K. Orme, Judge
 
 

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William A. Thorne Jr., Judge