State of Utah v. Mendez

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Ricky Reynaldo Mendez,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030134-CA
 

F I L E D
(June 26, 2003)
 

2003 UT App 224

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Second District, Ogden Department

The Honorable Stanton M. Taylor

Attorneys: Randall W. Richards, Ogden, for Appellant

Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee

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Before Judges Jackson, Greenwood, and Orme.

PER CURIAM:

Appellant Ricky Reynaldo Mendez appeals his conviction of Driving Under the Influence of Alcohol (DUI), a third degree felony. This case is before the court on a sua sponte motion for summary affirmance.

Mendez was originally charged with class B misdemeanor DUI as a first offense. He appeared in Riverdale Justice Court and entered a guilty plea. Upon determination that Mendez had two prior DUI convictions within the ten-year period preceding the offense, the justice court apparently withdrew the guilty plea. Mendez was charged by information in district court with DUI, which was enhanced to a third degree felony based upon his prior convictions. Mendez was convicted following a jury trial and timely appealed.

Mendez claims for the first time on appeal that his trial in district court violated his constitutional rights by subjecting him to double jeopardy. Claims not raised in the trial court generally may not be raised on appeal. See State v. Cram, 2002 UT 37,¶9, 46 P.3d 230. "[T]he preservation rule applies to every claim, including constitutional questions, unless a defendant can demonstrate that 'exceptional circumstances' exist or 'plain error' occurred." Id. In Cram, a defendant who failed to object to the declaration of a mistrial first raised a double jeopardy claim at the scheduling conference for the retrial. The Utah Supreme Court observed that "defendants are . . . not entitled to both the benefit of not objecting at trial and the benefit of objecting on appeal." Id. at ¶10. Accordingly, the supreme court held that "[b]ecause Cram did not make a timely objection to the trial court's declaration of a mistrial, and thus did not preserve his objection for appeal, double jeopardy does not bar Cram's retrial or potential conviction." Id. at ¶14.

Mendez did not raise his double jeopardy claim in district court. He participated in a district court jury trial, and now raises his double jeopardy claim on appeal, contending that the district court lacked jurisdiction. It is implicit in Cram that an unpreserved double jeopardy claim does not deprive the trial court of jurisdiction. Because Mendez did not preserve his objection for appeal, we are unable to consider it.

We affirm the conviction.

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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