State of Utah v. Hawke

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Jonathan Hawke,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030676-CA
 

F I L E D
(July 1, 2004)
 

2004 UT App 219

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Third District, Tooele Department

The Honorable Randall N. Skanchy

Attorneys: David J. Angerhofer, Sandy, for Appellant

Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee

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Before Judges Bench, Greenwood, and Orme.

PER CURIAM:

    Jonathan Hawke appeals the trial court's denial of his motion to withdraw his guilty pleas. This case has been set for briefing, and Hawke has filed his brief. Instead of filing a response brief, the State has raised a jurisdictional issue, and moves this court for summary disposition. "[Q]uestions regarding subject matter jurisdiction may be raised at any time." Housing Auth. v. Snyder, 2002 UT 28,¶11, 44 P.3d 724; see also State v. Brooks, 908 P.2d 856, 860 (Utah 1995) (noting jurisdiction issues are "raisable at any time").

    After a July 28, 2003 hearing on Hawke's motion to withdraw his pleas, the trial court denied Hawke's motion from the bench. The ruling was noted only in an unsigned minute entry. Hawke filed his notice of appeal on August 12, 2003, based on the ruling at the hearing. The State asserts there is no final order in place, and thus, Hawke's appeal is premature.

    A motion to withdraw a plea is within the scope of rule 4(b) of the Utah Rules of Appellate Procedure. Rule 4(b) provides that certain postjudgment motions, including a motion to withdraw a plea, toll the time for filing an appeal. See Utah R. App. P. 4(b). If a motion to withdraw a plea is timely filed, "the time for appeal for all parties shall run from the entry of the order . . . granting or denying the motion." Id. Furthermore, a notice of appeal filed before the entry of the order disposing of the motion to withdraw a plea "shall have no effect." Id. Instead, a new notice of appeal must be filed within thirty days of the entry of the order disposing of the motion. See id.

    It is well settled that an unsigned minute entry is not a final judgment for purposes of appeal. See State v. Rawlings, 829 P.2d 150, 153 (Utah Ct. App. 1992), overruled on other grounds by State v. Gordon, 913 P.2d 350, 357 n.3 (Utah 1996). "Absent a final order, the appellate courts lack jurisdiction to consider an appeal." Id. In this case, there is nothing more than an unsigned minute entry in the record. There is no final order disposing of Hawke's motion to withdraw his pleas, and thus, the notice of appeal is without effect pursuant to rule 4(b). Because Hawke's notice of appeal is premature, this court lacks jurisdiction to hear the appeal. See State v. Jiminez, 938 P.2d 264, 265 (Utah 1997).

    Accordingly, we dismiss the appeal without prejudice to the filing of a timely appeal after the entry of a final order disposing of Hawke's motion to withdraw his pleas.

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Russell W. Bench,

Associate Presiding Judge

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge