American Fork v. Davis

IN THE UTAH COURT OF APPEALS

----ooOoo----

American Fork City,
Plaintiff and Appellee,

v.

Karen Taylor Davis,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030164-CA
 

F I L E D
(June 19, 2003)
 

2003 UT App 210

-----

Fourth District, American Fork Department

The Honorable John C. Backlund

Attorneys: Karen Taylor Davis, Salt Lake City, Appellant Pro Se

James "Tucker" Hansen, American Fork, for Appellee

-----

Before Judges Jackson, Greenwood, and Orme.

PER CURIAM:

Appellant Karen Taylor Davis is charged with the offense of providing false information to a government agency, a class B misdemeanor. The case is before the court on a sua sponte motion for summary dismissal for lack of jurisdiction because no final appealable judgment has been entered in the ongoing trial court proceeding.

It is well-established that "[i]n criminal cases, the sentence itself is the final judgment from which an appeal can be taken." State v. Hunsaker, 933 P.2d 415, 416 (Utah Ct. App. 1997) (per curiam); see also State v. Gerrard, 584 P.2d 885, 886 (Utah 1978) ("It is the sentence itself which constitutes a final judgment from which appellant has the right to appeal."). Davis seeks to appeal the denial of a motion to reconsider an earlier order denying her motion to disqualify the trial judge assigned to her case. Neither the original order denying the motion to disqualify nor the subsequent order refusing reconsideration are final and appealable.

Davis did not file a timely petition for permission to appeal under rule 5 of the Utah Rules of Appellate Procedure. Accordingly, we cannot and have not granted permission to appeal from the interlocutory order. We are precluded from suspending or modifying the requirements of rule 5. See Utah R. App. P. 2. Davis incorrectly construes our sua sponte motion as granting permission to pursue an interlocutory appeal. This contention is without merit.

Having determined that we lack jurisdiction over the appeal, we must dismiss it. See Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989) ("When a matter is outside the court's jurisdiction, it retains only the authority to dismiss the action."). We dismiss the appeal, without prejudice to a timely appeal initiated following entry of a final appealable judgment.

______________________________

Norman H. Jackson,

Presiding Judge

______________________________

Pamela T. Greenwood, Judge

______________________________

Gregory K. Orme, Judge