Jackson v. Friel

Jackson v. Friel

IN THE UTAH COURT OF APPEALS

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Lawrence M. Jackson,

Petitioner and Appellant,

v.

Clint Friel, Warden, Utah State Prison,

Respondent and Appellee.

MEMORANDUM DECISION (Not For Official Publication)
 

Case No. 20030306-CA
 

F I L E D
(October 2, 2003)
 

2003 UT App 325

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Third District, Salt Lake Department
The Honorable Timothy R. Hanson

Attorneys: Lawrence M. Jackson, Gunnison, Appellant Pro Se

Mark Shurtleff and Sharel S. Reber, Salt Lake City, for Appellee

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Before Judges Jackson, Greenwood, and Orme.

PER CURIAM:

Appellant Lawrence M. Jackson appeals from the denial of his petition for post-conviction relief and his motion for new trial and/or amendment of the judgment. This case is before the court on a sua sponte motion for summary dismissal.

The district court entered the order denying Jackson's petition on February 22, 2002. Jackson filed timely motions for new trial or amendment of judgment under rules 59 and 52(b) of the Utah Rules of Civil Procedure, respectively. Following a hearing on the motions, the district court issued an unsigned minute entry on March 24, 2003, which directed counsel for Respondent Clint Friel to prepare an order in conformity with the Court's ruling. On April 8, 2003, prior to entry of a signed order, Jackson filed the notice of appeal in this case.(1) On April 14, 2003, the district court entered the signed order denying the post-judgment motions.

Rule 4(b) of the Utah Rules of Appellate Procedure states that a timely motion under rule 52(b) or rule 59 shall toll the time for filing a notice of appeal and "the time to appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion." Utah R. App. P. 4(b). Accordingly, a notice of appeal filed before disposition of the post-judgment motion "shall have no effect," and "[a] new notice of appeal must be filed within the prescribed time measured from the entry of the order of the trial court disposing of the motion." Id. Jackson filed a notice of appeal after the announcement of the decision on the motion for new trial and/or amendment of judgment in an unsigned minute entry, but before entry of the signed order. However, rule 4(c) of the Utah Rules of Appellate Procedure cannot be applied to this case because the rule specifically excludes cases where a timely post-judgment motion under rule 52(b) or 59 has been filed.

The notice of appeal filed prior to entry of the signed order denying Jackson's post-judgment motions is of no effect, and did not confer jurisdiction over this appeal. Jackson did not file a new notice of appeal within thirty days after the entry of the signed order; therefore, this court lacks jurisdiction to consider the appeal on the merits.

We dismiss the appeal for lack of jurisdiction.

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Norman H. Jackson,

Presiding Judge

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge

1. We also dismissed Jackson's earlier appeal for lack of jurisdiction because the notice of appeal was filed before entry of an order denying the timely post-judgment motions. See Jackson v. Friel, 2002 UT App 283 (per curiam).