West Valley City v. Mann

----ooOoo----

West Valley City,
Plaintiff and Appellee,

v.

Darrin Mann,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020756-CA

F I L E D
November 15, 2002
  2002 UT App 383 -----

Third District, West Valley Department
The Honorable Terry Christiansen

Attorneys:
Benjamin A. Hamilton, Salt Lake City, for Appellant
J. Richard Catten, West Valley City, for Appellee -----

Before Judges Jackson, Billings, and Thorne.

PER CURIAM:

Appellant Darrin Mann appeals his conviction of Driving Under the Influence of Alcohol or Drugs, a class B misdemeanor, which resulted from a trial de novo in district court following a conviction in the West Valley City 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 appeal is one of several largely identical appeals filed by counsel for Mann seeking to appeal the district court's ruling on the constitutionality of rule 4-608 of the Utah Rules of Judicial Administration. Mann entered a conditional guilty plea in district court. The right to appeal a decision of the district court following a trial de novo is limited by statute. "The decision of the district court is final and may not be appealed unless the district court rules on the constitutionality of a statute or ordinance." Utah Code Ann. § 78-5-120(7) (Supp. 2002). In similarly situated appeals seeking review of the district court's denial of a constitutional challenge to rule 4-608(2)(c), 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." Murray City v. Kvenvold, 2002 UT App 263,¶3 (per curiam); Murray City v. Serre, 2002 UT App 264,¶3 (per curiam); State v. Beuchert, 2002 UT App 266,¶3 (per curiam). Mann's collateral challenge to the jurisdictional holding in those decisions is both procedurally inappropriate and without merit.(1) The previous decisions of this court on the identical issue 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."); see also Farmington City v. Wahlstrom, 2002 UT App 309; Heber City v. Phillips, 2002 UT App 311 (addressing identical jurisdictional arguments to those raised in present case).

Mann's argument in response to the sua sponte motion suggests his challenge was to the joint operation of rule 4-608 and section 78-5-120 to unconstitutionally limit his right to appeal. In contrast, the motion filed in district court specifically sought a ruling that the requirement in Rule 4-608(2)(c) of the Rules of Judicial Administration, requiring a certificate of probable cause as provided in the Rules of Criminal Procedure to stay a sentence from justice court pending the de novo trial appeal to the district court is unconstitutional and violates the due process and double jeopardy clauses of the constitutions of both the United States and Utah.

The district court's ruling was limited to the constitutionality of former rule 4-608(2)(c). This court lacks jurisdiction over this appeal under section 78-5-120(7) because the district court did not rule on the constitutionality of a statute or ordinance. This case is not distinguishable from Kvenvold, Serre, Beuchert, Wahlstrom, or Phillips.

Mann requests this court to certify this appeal to the Utah Supreme Court rather than dismissing it. "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). A challenge to this court's ruling on jurisdiction must be made by timely filing a petition for writ of certiorari in the Utah Supreme Court. See Utah R. App. P. 49.

Accordingly, we grant the sua sponte motion and dismiss the appeal for lack of jurisdiction.
 

______________________________
Norman H. Jackson,
Presiding Judge
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 

______________________________
William A. Thorne Jr., Judge

1. The means to challenge a decision of this court is a timely petition for writ of certiorari under rules 48 and 49 of the Utah Rules of Appellate Procedure. Mann's counsel did not seek certiorari in prior appeals dismissed by this court on the same jurisdictional ground. Alternatively, a means to seek review of issues not encompassed within our statutory jurisdiction under Utah Code Ann. § 78-5-120(7) (Supp. 2002) would be a petition for extraordinary relief. See Dean v. Henriod, 1999 UT App 50,¶8, 975 P.2d 946.