State of Utah v. Kee

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Jeremy Kee,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020793-CA

F I L E D
December 12, 2002 2002 UT App 421 -----

Third District, Silver Summit Department
The Honorable Robert K. Hilder

Attorneys:
Benjamin A. Hamilton, Salt Lake City, for Appellant
Robert W. Adkins and Mary-Kathleen Wolsey, Park City, for Appellee -----

Before Judges Billings, Bench, and Thorne.

PER CURIAM:

Appellant Jeremy Kee appeals his conviction of alcohol related reckless driving, a class B misdemeanor, which resulted from a trial de novo in the district court following a conviction in Summit County Justice Court. This case is before the court on a sua sponte motion for summary dismissal on the basis that this court lacks jurisdiction over an appeal following a trial de novo "unless the district court rules on the constitutionality of a statute or ordinance." Utah Code Ann. § 78-5-120(7) (Supp. 2002).

This is one of several appeals by counsel for Appellant seeking to appeal the district court's ruling on the constitutionality of rule 4-608 of the Utah Rules of Judicial Administration. In those appeals this court held that when an Appellant "challenges the constitutionality of a rule, rather than a statute or ordinance as specified under the statute, this court is without jurisdiction over the appeal."(1)West Valley City v. Mann, 2002 UT App 383,¶2; State v. Beuchert, 2002 UT App 266,¶3 (per curiam); Murray City v. Serre, 2002 UT App 264,¶3 (per curiam); Murray City v. Kvenvold, 2002 UT App 263,¶3 (per curiam). The previous decisions of this court on the identical issues are binding. See State v. Thurman, 846 P.2d 1256, 1269 (Utah 1993) ("[S]tare decisis has equal application when one panel of a multi-panel appellate court is faced with a prior decision of a different panel.").(2)

"When a matter is outside the court's jurisdiction, it retains only the authority to dismiss the action." Varian-Eimac v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989). Accordingly, we dismiss the appeal for lack of jurisdiction.
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
William A. Thorne Jr., Judge

1. A means to seek review of issues not within this court's statutory jurisdiction under Utah Code Ann. § 78-5-120(7) (Supp. 2002) is a petition for extraordinary relief. See Dean v. Henriod, 1999 UT App 50,¶8, 975 P.2d 946.

2. The proper means to challenge a decision of this court is a timely petition for writ of certiorari pursuant to rules 48 and 49 of the Utah Rules of Appellate Procedure.