State of Utah v. Brown

State v. Brown

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Chey Brown,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030661-CA
 

F I L E D
(October 23, 2003)
 

2003 UT App 363

 

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Second District, Ogden Department

The Honorable Roger S. Dutson

Attorneys: Chey Brown, Draper, Appellant Pro Se

Mark L. Shurtleff and Laura B. Dupaix, Salt Lake

City, for Appellee

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Before Judges Jackson, Bench, and Orme.

PER CURIAM:

This case is before the court on its own motion for consideration of summary dismissal on the basis that the court lacks jurisdiction. Appellant Brown has not responded to this court's motion, but filed a motion entitled, "Motion for Summary Disposition." The State filed a response in support of the court's motion.

Brown entered a plea of guilty to two criminal offenses in exchange for the dismissal of the remaining charges. The Sentence, Judgment, and Conviction was entered February 21, 2002. Brown filed his notice of appeal in this case on August 13, 2003, over one year and five months after the Sentence, Judgment, and Commitment issued. A notice of appeal must be filed within thirty days of entry of the final order. See Utah R. App. P. 4(a). In a criminal case, the sentence itself constitutes the final appealable order. See State v. Gerrard, 584 P.2d 885, 886 (Utah 1978). When the notice of appeal is untimely, this court lacks jurisdiction of the appeal. See Serrato v. Utah Transit Auth., 2000 UT App 299,¶7, 13 P.3d 616.

Review of the trial record also reveals that Brown has never filed a motion to withdraw his guilty plea. A timely motion to withdraw the plea is required to confer jurisdiction upon this court. See State v. Reyes, 2002 UT 13,¶3, 40 P.3d 630.

Lastly, Brown contends, in his motion for summary disposition that he is appealing the trial court's denial of his "Request to Proceed Impecunious and Request for Transcripts and Records." However, there is no trial court ruling on the motion in the record. Brown does not, therefore, appeal from a final appealable order. Even assuming a ruling existed, it is unlikely it would be a final appealable order in itself. Therefore, this court lacks jurisdiction.

Once a court has determined that it lacks jurisdiction, it "retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamareaux, 767 P.2d 569, 570 (Utah Ct. App. 1998).

Accordingly, we dismiss the action.

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Norman H. Jackson,

Presiding Judge

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Russell W. Bench, Judge

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Gregory K. Orme, Judge