State of Utah v. White

State v. White

IN THE UTAH COURT OF APPEALS

----ooOoo----

State of Utah,

Plaintiff and Appellee,

v.

James Benjamin White,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)
 

Case No. 20021005-CA
 

F I L E D

(February 27, 2003)
 

2003 UT App 61

 

-----

Third District, Salt Lake Department

The Honorable Ann Boyden

Attorneys: James Benjamin White, Crowley, Colorado, Appellant Pro Se

Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee

-----

Before Judges Bench, Davis, and Thorne.

PER CURIAM:

Appellant James Benjamin White appeals the denial of a motion to dismiss based upon an alleged failure to comply with the Interstate Agreement on Detainers. See Utah Code Ann. § 77-29-5 (1999). This appeal is before the court on a sua sponte motion for summary disposition.

In response, the State raises the jurisdictional defect that denial of White's motion to dismiss was an interlocutory order that cannot be appealed prior to entry of the final judgment and sentence in the criminal case. See 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."). Based upon a review of the record, we conclude that the State's argument is well taken. No final judgment has been entered on the pending criminal charge. In addition, White did not seek or obtain permission to appeal from the interlocutory order denying his motion to dismiss. See Utah R. App. P. 5(a). Accordingly, the order may be reviewed only in an appeal at the conclusion of the case.

Based upon the absence of a final appealable order, we lack jurisdiction over the appeal. See Varian-Eimac 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."). Our disposition makes it unnecessary to address the timeliness of the notice of appeal.

Accordingly, we dismiss the appeal for lack of jurisdiction, without prejudice to a timely appeal taken after entry of final judgment.

______________________________

Russell W. Bench, Judge

______________________________

James Z. Davis, Judge

______________________________

William A. Thorne Jr., Judge