State of Utah v. Norton

State v. Norton

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Steven Dale Norton,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020708-CA
 

F I L E D
(December 11, 2003)
 

2003 UT App 431

 

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Fourth District, Heber City Department

The Honorable Donald J. Eyre

Attorneys: Dana M. Facemyer, Provo, for Appellant

Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee

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Before Judges Davis, Greenwood, and Thorne.

PER CURIAM:

Defendant appeals from his conviction based upon a conditional guilty plea, see State v. Sery, 758 P.2d 935, 938-39 (Utah Ct. App. 1988), to driving under the influence (DUI), a third degree felony. See Utah Code Ann. § 41-6-44(6)(a) (Supp. 2001).

Defendant contends that his 1992 DUI conviction cannot be used to enhance his 2002 conviction, which was based upon his November 2001 violation of the DUI statute. The State responds that Defendant has not provided an adequate record that permits this court to consider his appeal. A defendant seeking appellate review based upon a conditional guilty plea bears the burden of providing this court with an adequate record. See State v. Garza, 820 P.2d 937, 939 (Utah Ct. App. 1991). Without an adequate record, this court cannot review the proceedings below. See id. Moreover, in an appellate brief, the defendant is required to include citations to the record showing that the issues presented on appeal were preserved in the district court. See Utah R. App. P. 24(a)(5)(A). In the present case, Defendant did not provide a hearing transcript, and no motion to dismiss, supporting memorandum, or findings of fact and conclusions of law appear in the certified record. In his brief, Defendant did not include citations to the record showing that the issues he presents on appeal were preserved in the district court. While this court is able to review the denial of a motion to dismiss where the conditional plea agreement specifically preserves an issue for appeal, see Garza, 820 P.2d at 939, in the plea agreement in this case Defendant generally reserves the right to appeal the ten-year and six-year enhancement issue. A minute entry indicates only that Defendant moved to dismiss the third degree felony "enhancement" because the "period had lapsed" and challenged the constitutionality of the 2001 amendment.

Even assuming Defendant raised the issues in the district court, the issues he presents on appeal are without merit. Defendant asserts that before the effective date of the 2001 amendment, the DUI statute enhanced a third conviction to a third degree felony if the defendant's two prior convictions were within six years of the third conviction.(1) Defendant contends that the DUI statute before the 2001 amendment was "in essence" a statute of limitations and therefore, after six years, in 1998, his 1992 conviction expired and cannot be used to enhance his conviction for his 2001 violation.

The 2001 amendment to the DUI statute unambiguously enhances a third conviction to a third degree felony if the third violation was within ten years of the prior convictions. See Utah Code Ann. § 41-6-44(6)(a) (Supp. 2001); see also State v. Marshall, 2003 UT App 381,¶13, 486 Utah Adv. Rep. 55. The 2001 amendment did not extend the statute of limitations nor was it applied retroactively to allow the State to again prosecute or punish Defendant for his 1992 violation. Cf. Marshall, 2003 UT App 381 at ¶16 & n.6 (concluding 2001 amendment did not retroactively aggravate pre-amendment violations). Rather,
Defendant was prosecuted and is being punished only for his 2001 violation. See id. at ¶16.

We therefore affirm.

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James Z. Davis, Judge

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge

1. The DUI statute has been amended numerous times. See State v. Marshall, 2003 UT App 381,¶¶11-12, 486 Utah Adv. Rep. 55 (discussing amendments). Defendant has not analyzed the facts of his case under the specific language of the relevant amendments. Moreover, Defendant has not explained why the authorities he cites require this court to reverse the district court. This court will not assume Defendant's "burden of argument and research." State v. Jaeger, 1999 UT 1,¶31, 973 P.2d 404 (quotations and citations omitted).