State of Utah v. Smith

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Warren David Smith,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020516-CA

F I L E D
December 12, 2002 2002 UT App 425 -----

First District, Brigham City Department
The Honorable Ben H. Hadfield

Attorneys:
James Retallick, Ogden, for Appellant
Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee -----

Before Judges Billings, Bench, and Thorne.

PER CURIAM:

Appellant Warren David Smith appeals his conviction of Possession of a Controlled Substance with Intent to Distribute, a second degree felony. This case is before the court on a sua sponte motion for summary disposition. Smith did not respond.

Smith pleaded guilty following the court's denial of a motion to suppress, which he now seeks to challenge on appeal. "A voluntary plea of guilty or no contest constitutes a waiver of the right to appeal all nonjurisdictional issues, including denial of a motion to suppress." State v. Smith, 833 P.2d 371, 372 (Utah Ct. App. 1992). Smith did not preserve a right to appeal from the denial of the motion to suppress by entering a conditional guilty plea pursuant to State v. Sery, 758 P.2d 935 (Utah Ct. App. 1988).

Smith also did not move to withdraw his guilty plea; therefore, this court lacks jurisdiction to consider any challenge to the validity of the plea. Utah Code Ann. § 77-13-6(2)(b) (1999) requires a motion to withdraw a guilty plea to be made within thirty days after entry of the plea. The thirty-day time period commences with the entry of the final judgment and sentence. See State v. Ostler, 2001 UT 68,¶13, 31 P.3d 528. Failure to file a motion to withdraw a guilty plea "extinguishes a defendant's right to challenge the validity of the guilty plea on appeal." State v. Reyes, 2002 UT 13,¶3, 40 P.3d 630. Smith urges this court to retain the appeal because he claims his trial counsel rendered ineffective assistance by failing to preserve his right to appeal from the denial of the motion to suppress. Failure to file a timely motion to withdraw a guilty plea also precludes consideration of an ineffective assistance of counsel claim on appeal. See State v. Melo, 2001 UT App 392,¶8, 40 P.3d 646; see also State v. Tarnawiecki, 2000 UT App 186,¶19 n.7, 5 P.3d 1222.

Accordingly, we dismiss the appeal because we lack jurisdiction to consider the claims raised on appeal.
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
William A. Thorne Jr., Judge