State v. Cox

State v. Cox

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Robert Ellis Cox,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040300-CA
 

F I L E D
(August 19, 2004)
 

2004 UT App 277

 

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Third District, Salt Lake Department

The Honorable Robin W. Reese

Attorneys: Linda M. Jones, Salt Lake City, for Appellant

Mark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Jackson.

PER CURIAM:

    This case is before the court on this court's motion as well as the State's motion for summary dismissal for lack of jurisdiction. See Utah R. App. P. 10. The summary dismissal motion was based on an untimely notice of appeal. Appellant Cox was convicted by a jury. The Sentence, Judgment, and Commitment issued December 8, 2003. Cox filed a motion for a new trial on December 5, 2003, prior to sentencing and issuance of the final judgment. The trial court issued findings denying Cox's motion for a new trial on March 11, 2004. Cox filed his notice of appeal on April 8, 2004. Because the motion for a new trial was filed prior to sentencing and issuance of the final judgment, the motion was premature and, therefore, untimely. See Utah R. Crim. P. 24(c). As a result, the motion did not toll the time for filing the notice of appeal. See Utah R. App. P. 4(b); State v. Putnik, 2002 UT 122,¶5, 63 P.3d 91. The notice of appeal, filed within thirty days of the order denying the motion for a new trial, rather than thirty days from the final judgment, is untimely. See State v. Todd, 2004 UT App 266; State v. Putnik, 2002 UT at ¶5. When a notice of appeal is untimely filed, this court lacks jurisdiction to do anything other than dismiss the action. See Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989).

    Rather than filing a response to the motions for summary dismissal, Cox filed a "Motion to Temporarily Remand for Resentencing." Cox argues that under this court's general authority, based on Utah Code section 78-2a-3(1)(b) (2002), which grants this court jurisdiction "to issue all extraordinary writs and to issue all writs and process necessary . . . in aid of its jurisdiction," this court can remand for resentencing if an appellant was deprived of his right to appeal because of counsel's malfeasance. See Utah Code Ann. § 78-2a-3(1)(b)(2002).

    Cox also argues that this court can remand for resentencing under rule 60(b) of the Utah Rules of Civil Procedure by granting relief from judgment and remanding to perfect the appeal. Lastly, Cox argues that he will be deprived of his right to appeal if this court does not remand for resentencing.

    The authority granted under section 78-2a-3(1)(b) presumes that this court has appropriate jurisdiction. It does not confer jurisdiction where this court does not otherwise have it because of an untimely notice of appeal. The deadline for filing a notice of appeal is jurisdictional and cannot be shortened or lengthened by this court. See State v. Manning, 2004 UT App 87,¶10, 89 P.3d 196. Rule 60(b) is a rule of civil procedure to be invoked in the trial court. It is not appropriate to bring a motion under rule 60(b) in this court for the first time. Also, assuming a rule 60(b) motion was appropriate, the notice of appeal would still be required to have been filed within thirty days of the final judgment because a rule 60(b) motion does not toll the time for filing a notice of appeal. See Utah R. App. P. 4(b).

    With respect to the argument that Cox will be deprived of his right to appeal if this court does not remand for resentencing, this is the very situation to which rule 65C of the Utah Rules of Civil Procedure applies, when an appellant has no other remedy. If Cox can demonstrate in a motion pursuant to rule 65C, brought before the trial court, that he lost his right to appeal because of counsel's misrepresentations or ineffective assistance, he would be eligible to be resentenced. See State v. Johnson, 635 P.2d 36, 38 (Utah 1981). As Johnson indicates, a post-conviction petition is the proper remedy for such situations. See id. The trial court can hold hearings and take evidence on why appellant lost his right to appeal and whether it was the result of malfeasance of counsel. See id. This court recently reiterated that the Post-Conviction Remedy Act provides a remedy in these circumstances. See State v. Manning, 2004 UT App 87 at ¶20. Once the time has expired for filing a direct appeal, the exclusive means for claiming that a constitutional violation occurred is a post-conviction petition for relief. See id. This is true even in claims that appellant was denied a direct appeal as a result of ineffective assistance of counsel. See Johnson, 635 P.2d at 38.

    Cox argues that a motion under the Post-Conviction Remedies Act would not be feasible for him because of his pro se status and the lack of resources available to him at the prison. Cox also argues that proceeding under the Post-Conviction Remedies Act would not be a speedy remedy. However, the trial court has the authority to appoint counsel on a pro bono basis for purposes of a post conviction petition if the petition is not summarily dismissed. See Utah Code Ann. § 78-35a-109 (2002). Moreover, the fact that the process of litigating a post-conviction petition takes time does not allow this court to assume jurisdiction of an appeal not properly before it.

    Accordingly, this appeal is summarily dismissed for lack of jurisdiction.

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Russell W. Bench,

Associate Presiding Judge

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James Z. Davis, Judge

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Norman H. Jackson Judge