Draper v. State

Draper v. State

IN THE UTAH COURT OF APPEALS
 

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David L. Draper,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040402-CA
 

F I L E D
(September 23, 2004)
 

2004 UT App 329

 

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Third District, Salt Lake Department

The Honorable Stephen L. Henriod

Attorneys: David L. Draper, Draper, Appellant Pro Se

    Mark L. Shurtleff and Sharel S. Reber, Salt Lake City, for Appellee

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Before Judges Davis, Jackson, and Orme.

PER CURIAM:

        This case is before the court on its own motion for summary disposition on the basis of lack of jurisdiction as a result of an untimely notice of appeal and, alternatively, on the ground that the questions presented are so insubstantial as to not merit further consideration. See Utah R. App. P. 10.

    On April 8, 2004, the trial court issued a signed minute entry, granting the State's motion to dismiss Appellant Draper's petition for extraordinary relief pursuant to rule 65B of the Utah Rules of Civil Procedure. Draper's notice of appeal was filed on May 11, 2004, beyond thirty days from issuance of the final order. See Utah R. App. P. 4(a).

    Draper contends that his notice of appeal was not untimely based on rule 4(f) of the Utah Rules of Appellate Procedure. Rule 4(f) allows an inmate, confined in an institution, to demonstrate that his or her notice of appeal was timely filed if the notice was deposited in the institution's internal mail on or before the last day for filing. An inmate must demonstrate timely filing by a "notarized statement or written declaration setting forth the date of deposit and stating that first-class postage has been prepaid." Utah R. App. P. 4(f).

    Draper did not meet these requirements in filing his notice of appeal. He submitted a non-notarized statement indicating that he is incarcerated in the Utah State Prison and that he is "invoking rule 4(f)" of the Utah Rules of Appellate Procedure. The statement fails to indicate when the notice was submitted to the prison mail and fails to attest that postage was prepaid.

    Draper also stated in his docketing statement that the notice of appeal was filed "on or about the 6th day of May, 2004." This is also insufficient to meet the requirements of rule 4(f). The statement must state specifically the date the notice was deposited into the prison mail. Further, the docketing statement does not attest that postage was prepaid.

    Because Draper did not meet the requirements of rule 4(f) of the Utah Rules of Appellate Procedure and his notice of appeal was filed in the trial court beyond thirty days from issuance of the final order, the notice of appeal was untimely. As a result, this court lacks jurisdiction. When the court lacks jurisdiction it "retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah App. 1998).

    We dismiss the appeal.(1)

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James Z. Davis, Judge

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Norman H. Jackson, Judge

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Gregory K. Orme, Judge

1. Because we lack jurisdiction we do not address whether the issues are so insubstantial as to not merit further consideration by the court.