Ogden City v. Brown

Ogden City v. Brown

IN THE UTAH COURT OF APPEALS

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Ogden City,

Plaintiff and Appellee,

v.

Chey Brown,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030616-CA
 

F I L E D
(November 14, 2003)
 

2003 UT App 392

 

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Second District, Ogden Department

The Honorable Ernie W. Jones

Attorneys: Chey Brown, Draper, Appellant Pro Se

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Before Judges Jackson, Bench, and Orme.

PER CURIAM:

This case is before the court on a sua sponte motion for summary dismissal on the basis that the court lacks jurisdiction. Appellant Chey Brown did not reply to the court's motion, but filed his own motion for summary disposition, as well as a motion for stay.

Pursuant to a plea bargain, Brown entered a guilty plea to an amended charge of Attempted Threat or Use of a Dangerous Weapon in Flight, a class B misdemeanor. The court accepted the guilty plea and entered its judgment and sentence on January 10, 2002. Brown was sentenced to serve sixty days in jail, which would run concurrently with any other sentence he was then serving and could be served at the Utah State Prison. Brown did not file a timely motion to withdraw his guilty plea, and did not file a timely notice of appeal from the judgment and sentence. In addition, Brown has served the entire sixty-day sentence for the misdemeanor offense.

A notice of appeal must be filed within thirty days of entry of a final appealable judgment. See Utah R. App. P. 4(a). In this case, the court entered its judgment and sentence on January 10, 2002, and the notice of appeal was not filed until July 29, 2003, well beyond the time for a direct appeal from the conviction or sentence. When a notice of appeal is untimely, this court lacks jurisdiction to consider the appeal. See Serrato v. Utah Transit Auth., 2000 UT App 299,¶17, 13 P.3d 616.

Accordingly, we lack jurisdiction to consider an appeal of the conviction or sentence.

Brown's notice of appeal is purportedly taken from an order entered on or about August 7, 2003 denying a request for transcripts to be provided at State expense. No such court order appears in the record, although the court reporter sent a letter, dated August 4, 2003, informing Brown that a court order would be required to obtain the transcripts at public expense. Accordingly, this appeal is not taken from a final appealable order. Even assuming that such an order existed, there was no pending appeal or pending case in which a request for a transcript could be pursued.

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

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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