State of Utah v. Garner

State v. Garner

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Kelley Lafe Garner,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020479-CA
 

F I L E D
(March 13, 2003)
 

2003 UT App 72

 

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Second District, Farmington Department

The Honorable Thomas L. Kay

Attorneys: Scott L. Wiggins, Salt Lake City, for Appellant

Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake

City, for Appellee

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Before Judges Billings, Bench, and Thorne.

PER CURIAM:

This case is before the court on Appellee's motion for summary dismissal, pursuant to rule 10 of the Utah Rules of Appellate Procedure. Appellee contends that the notice of appeal was untimely filed.

The Sentence, Judgment, and Commitment on this matter was entered July 27, 2001. A notice of appeal was filed on September 20, 2001, which resulted in appellate case number 20010762, in which an unpublished per curiam decision issued in July 2002. See State v. Garner 2002 UT App 238 (per curiam). A second notice of appeal was filed June 13, 2002, which resulted in this appeal. The first appeal was dismissed for lack of jurisdiction due to an untimely notice of appeal.

Appellant contended in the first appeal, and also argues in this case, that the Sentence, Judgment, and Commitment was modified on August 21, 2001 and May 14, 2002. See id. This court determined in the first appeal that any modifications made to the Sentence, Judgment, and Commitment were not material changes and did not extend the time for filing a notice of appeal. See ProMax Dev. Corp. v. Raile, 2000 UT 4,¶11, 998 P.2d 254. Previous decisions of this court on identical issues are binding. See State v. Thurman, 846 P.2d 1256, 1269 (Utah 1993). Moreover, stare decisis has "equal application when one panel of a multi-panel appellate court is faced with a prior decision of a different panel." Id.

Having determined that any changes to the Sentence, Judgment, and Commitment were not material and did not stay the time for filing a notice of appeal, the notice of appeal in this case, filed June 13, 2002, is untimely, and this court lacks jurisdiction. See Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989). Therefore, we dismiss the appeal.

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Judith M. Billings,

Associate Presiding Judge

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Russell W. Bench, Judge

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William A. Thorne Jr., Judge