State of Utah v. Herrera

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Daniel Herrera,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030527-CA
 

F I L E D
(March 4, 2004)
 

2004 UT App 49

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First District Court, Brigham City Department

The Honorable Clint S. Judkins

Attorneys: Daniel Herrera, Gunnison, Appellant Pro Se

Christopher D. Ballard and Mark L. Shurtleff,

Salt Lake City, for Appellee.

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Before Judges Davis, Jackson, and Thorne.

PER CURIAM:

Defendant Daniel Herrera appeals from the denial of his "Motion Sentence, Judgment and Commitment Order" and the denial of his "Motion for 22(e) Correct an Illegal Sentence."(1) This case is before the court on its own motion for summary affirmance. The State supports summary affirmance.

Defendant first contends that his sentence was not proper because the order is captioned "Judgment and Commitment." However, the order captioned "Judgment and Commitment" in substance sentences Defendant. Defendant also contends that his sentence was not proper because the trial judge did not sign it. However, the sentence in the record is signed by the trial judge.

Further, there is no requirement that the judge print his name on the sentence or that the sentence have an appeal certification.

Defendant summarily contends that there is "no such thing as a [f]irst degree, (5 to Life), [possession] of controlled substance." Defendant is incorrect. See Utah Code Ann. § 58-37-8(4) (2002). In the present case, Defendant was convicted of third degree felony possession of methamphetamine. The penalty was enhanced one degree to a second degree felony based upon Defendant's prior convictions of possession of a controlled substance in case number 981100180 and in case number 921000030. See id. § 58-37-8(2)(d). The penalty was further enhanced another degree to a first degree felony because the jury found Defendant possessed the controlled substance within a thousand feet of a public structure or parking lot. See id. § 58-37-8(4).

On appeal, Defendant asserts that his conviction in case number 921000030 was not for possession of a controlled substance. Although Defendant did not make this assertion in his "Motion Sentence, Judgment and Commitment Order" or his "Motion for 22(e) Correct an Illegal Sentence," "an appellate court can vacate [an] illegal sentence" even if the issue is raised for the first time on appeal. State v. Brooks, 908 P.2d 856, 860 (Utah 1995). However, there is no indication in the record as to what Defendant was convicted of in case number 921000030. Moreover, the trial court enhanced Defendant's sentence one degree for both prior convictions, not one degree for each prior conviction. Defendant has not established that his conviction in case number 981100180 could not serve as an enhancement. Moreover, Defendant has neither analyzed relevant statutory language nor argued that the trial court improperly applied the enhancements.

Defendant appears to contend he has been subjected to double jeopardy. However, Defendant does not contend that the imposition of consecutive sentences subjected him to double jeopardy.(2)

Accordingly, we affirm.

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James Z. Davis, Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge

1. This court affirmed Defendant's conviction on direct appeal. See State v. Herrera, 2002 UT App 55. To the extent Defendant again seeks to appeal from his conviction, this court's prior decision is res judicata. See State v. Clark, 913 P.2d 360, 362 (Utah Ct. App. 1996). Moreover, a proper motion to correct an illegal sentence, see Utah R. Crim. P. 22(e), presupposes a valid conviction. See State v. Brooks, 908 P.2d 856, 860 (Utah 1995).

2. Rather, Defendant appears to contend that he has already served his sentence in the present case and is serving it again. Defendant's remedy is a petition for habeas corpus in the district court, see Utah R. Civ. P. 65B, not the present appeal with this court.