Gowans v. Friel

Gowans v. Friel

IN THE UTAH COURT OF APPEALS

----ooOoo----

Scott Gowans,

Petitioner and Appellant,

v.

Clint Friel, Warden; and Board of Pardons,

Respondents and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040030-CA
 

F I L E D
(September 2, 2004)
 

2004 UT App 293

 

-----

Third District, Salt Lake Department

The Honorable Stephen L. Henriod

Attorneys: Scott Gowans, Florence, Colorado, Appellant Pro Se

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

-----

Before Judges Billings, Orme, and Thorne.

PER CURIAM:

    Appellant Scott Gowans appeals the trial court's dismissal of his petition for post conviction relief. He argues that the State violated the terms of his plea agreement, in which Gowans pleaded guilty to Possession of Clandestine Lab Precursors, a second degree felony. Gowans contends that the State agreed to recommend, and request that the trial judge also recommend, to the Board of Pardons that the state sentence run concurrently with his federal sentence imposed on January 31, 2002. Further, Gowans contends that the State and the judge were to recommend that Gowans be released immediately to federal custody.

    Gowans was not released to federal custody; rather, he remained in state custody until March 11, 2003, at which point he was released to federal authorities on a detainer to serve his sentence for the federal conviction. Gowans argues that the State violated the terms of the plea agreement in failing to insure that Gowans serve his time in federal custody and serve the sentences concurrently.

    We may not reach this argument, however, because this court lacks jurisdiction over the appeal. The trial court granted the State's motion to dismiss in the form minute entry issued on December 15, 2003. In that minute entry, the court ordered the State to submit a formal order in accordance with the minute entry ruling. The State never submitted an order. Gowans filed a notice of appeal on January 8, 2004, from the minute entry.

    A signed minute entry can be a final appealable order. However, "[a] signed minute entry will not be considered a final order where its language indicates that it is not intended as final." State v. Leatherbury, 2003 UT 2,¶9, 65 P.3d 1180. When further action is contemplated by the order, it is not deemed final and appealable. See id. The signed minute entry in this case contemplated further action, specifically, that the State prepare an order. Therefore, it is not final. When an appeal is taken in the absence of a final order, this court lacks jurisdiction to consider the appeal. See Utah R. App. P. 3(a). "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 the appeal.

______________________________

Judith M. Billings,

Presiding Judge

______________________________

Gregory K. Orme, Judge

______________________________

William A. Thorne Jr., Judge