State of Utah v. Woods

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Stephen G. Woods,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030543-CA
 

F I L E D
(October 9, 2003)
 

2003 UT App 331

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Third District, Salt Lake Department

The Honorable Judith S. Atherton

Attorneys: Russell T. Monahan and Stephen W. Cook, Salt

Lake City, for Appellant

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

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Before Judges Jackson, Greenwood, and Orme.

PER CURIAM:

This case is before the court on its own motion for consideration of summary dismissal for lack of jurisdiction because of an untimely notice of appeal. Both parties have filed responses to this court's motion.

Appellant was convicted by a jury on October 7, 2002. Appellant filed a motion to arrest judgment, pursuant to rule 23 of the Utah Rules of Criminal Procedure, on November 7, 2002. On January 27, 2003, the court issued a minute entry denying the motion to arrest judgment. Appellant was sentenced and the judgment, sentence, and conviction was entered May 12, 2003. A memorandum decision formalizing the denial of the motion to arrest judgment was issued May 20, 2002. The notice of appeal was filed on June 20, 2003.

A motion to arrest judgment is not one that tolls the time for filing a notice of appeal. See Utah R. App. P. 4(b). Therefore, the notice of appeal had to be filed within thirty days of entry of the judgment, sentence, and conviction in order to be timely. See State v. Bowers, 2002 UT 100,¶4, 57 P.3d 1065. Appellant's notice of appeal was required to be filed on or before June 11, 2003. See State v. Putnik, 2002 UT 122,¶3, 63 P.3d 91. The notice was not timely filed.(1)

Appellant argues that he is actually appealing the denial of the motion to arrest judgment and, therefore, had until thirty days from the memorandum decision denying that motion to file a notice of appeal. This argument has been categorically rejected by the Utah Supreme Court. See Bowers, 2002 UT 100 at ¶4. The only way to seek review of the denial of the motion to arrest judgment was through direct appeal of the conviction.

"When a matter is outside the court's jurisdiction, it retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989). Accordingly, we dismiss.

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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. The last line of Appellant's motion to arrest judgment stated that, in the alternative, a new trial should be granted. Even assuming this court were to construe the content of the motion to be a motion for a new trial, pursuant to rule 24 of the Utah Rules of Criminal Procedure, such a motion would have been premature and untimely because a motion for a new trial must be filed after sentencing.