Godfrey v. State

Godfrey v. State

IN THE UTAH COURT OF APPEALS

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James C. Godfrey,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040398-CA
 

F I L E D
(August 26, 2004)
 

2004 UT App 286

 

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Second District, Ogden Department

The Honorable Ernest W. Jones

Attorneys: James C. Godfrey, Gunnison, Appellant Pro Se

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Before Judges Bench, Davis, and Jackson.

PER CURIAM:

    James C. Godfrey appeals from the dismissal of his petition for post-conviction relief. This case is before the court on its own motion for summary disposition on the basis that this court lacks jurisdiction because the notice of appeal was filed untimely. See Utah R. App. P. 10.

    Godfrey failed to file his notice of appeal within thirty days from entry of a final judgment or order. See Utah R. App. P. 4(a). Although he filed a motion for an extension of time to file an appeal pursuant to rule 4(e) of the Utah Rules of Appellate Procedure, Godfrey filed his notice of appeal without waiting for an order from the trial court granting said motion.

    The exclusive procedure for extending the time for filing a notice of appeal lies under rule 4(e). See Glezos v. Frontier Invs., 896 P.2d 1230, 1235 (Utah Ct. App. 1995). Rule 4(e) provides that the trial court, "upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days" after the expiration of the time prescribed by rule 4(a). See Utah R. App. P. 4(e).

    Godfrey's sole remedy in this case was to file the rule 4(e) motion and await a ruling from the trial court allowing him an extension to file an appeal. This court cannot consider such motions, or grant such extensions, on appeal. See Glezos, 896 P.2d at 1233; see also State ex rel. M.S., 781 P.2d 1287, 1289 (Utah Ct. App. 1989). We therefore have no jurisdiction to consider Godfrey's appeal.

    Accordingly, Godfrey's appeal is dismissed without prejudice subject to the consideration of Godfrey's rule 4(e) motion by the trial court.

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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