State v. Diviney

State v. Diviney

IN THE UTAH COURT OF APPEALS

----ooOoo----

State of Utah,

Plaintiff and Appellee,

v.

Charles Lee Diviney,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020220-CA
 

F I L E D
(June 4, 2004)
 

2004 UT App 178

 

-----

Third District, Salt Lake Department

The Honorable Sheila K. McCleve

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

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

-----

Before Judges Bench, Jackson, and Orme.

ORME, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record[,] and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3). Moreover, the issues presented are readily resolved under applicable law.

Utah Rule of Criminal Procedure 22(e) provides that "[t]he court may correct an illegal sentence, or a sentence imposed in an illegal manner, at any time." In addition, "clerical errors

. . . may be corrected at any time." State v. Lorrah, 761 P.2d 1388, 1390 (Utah 1988). Defendant alleges, and the State agrees, that the trial court committed a clerical error when it entered a judgment, sentence, and commitment that reflected Defendant pled guilty to aggravated burglary, when Defendant was actually charged with and pled guilty to simple burglary. We agree that a clerical error was made by the trial court, and, therefore, in order "to harmonize the intent of the [trial] court with the written judgment," id. at 1389, we remand to the trial court for entry of a corrected judgment to reflect Defendant's guilty plea to burglary rather than aggravated burglary.

Defendant raises several issues regarding the restitution award, the first of which pertains to the calculation of lost wages. According to Defendant's recalculation, with which the State agrees, the victim should only have been awarded $1,978.25 in lost wages. Therefore, we remand so the trial court can adjust the restitution amount accordingly.

Next, Defendant argues that the victim was improperly compensated for lost wages on "charge-off" days. The victim testified that she could have worked at both jobs on charge-off days, and, therefore, that she is entitled to compensation for lost wages from the school district because, due to the injuries she suffered, she was unable to work at the school district on such days. Defendant points out that, prior to the injuries, the victim never worked both jobs on charge-off days and even after her recovery, she never worked both jobs on such days.

Section 76-3-201 defines restitution as "full, partial or nominal payment for pecuniary damages to a victim" of criminal activity, Utah Code Ann. § 76-3-201(1)(d) (2003), and pecuniary damages as "all special damages, but not general damages." Id. § 76-3-201(1)(c). But see State v. Corbitt, 2003 UT App 417,¶¶19-28, 82 P.3d 211 (Orme, J., concurring). Special damages consist of "actual loss of past earnings and anticipated loss of future earnings." Utah Code Ann. § 63-25a-411(4)(d) (Supp. 2003). In seeking compensable damages, the victim must show that a loss has actually occurred. See Valley Colour, Inc. v. Beuchert Builders, Inc., 944 P.2d 361, 364 (Utah 1997). The State failed to prove that the victim ever actually worked on charge-off days at the school district either before the incidents involving Defendant or after her recovery. Based on her actual work history, the victim is not entitled to recover lost wages from the school district on charge-off days. The trial court is instructed to make the appropriate adjustment on remand.

Defendant's other restitution claims were not preserved for appeal and need not be reached. Rule 24(a)(5)(A) of the Utah Rules of Appellate Procedure requires that Defendant cite "to the record showing that the issue was preserved in the trial court." Although Defendant did cite to the record where he objected to the restitution in general and to certain specific items included in the restitution award, Defendant failed to specifically object to the July 18, 2001 lost wages, the alarm system installation at her son's house, and the quarterly payments due on both alarm systems following the first incident. "Generally, a defendant who fails to bring an issue before the trial court is barred from asserting it initially on appeal." State v. Archambeau, 820 P.2d 920, 922 (Utah Ct. App. 1991). See also Harris v. IES Assocs., 2003 UT App 112,¶51, 69 P.3d 297 (holding that "general reference[s] to the trial transcript volumes" are insufficient to satisfy the requirement of rule 24(a)(5)(A)).

We remand to the trial court to correct the clerical error to reflect Defendant's guilty plea to burglary and to adjust the amount of restitution as specified herein. Otherwise, we affirm.

______________________________

Gregory K. Orme, Judge

-----

WE CONCUR:

______________________________

Russell W. Bench,

Associate Presiding Judge

______________________________

Norman H. Jackson, Judge