State v. Holbrook

State v. Holbrook

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Justin Walter Holbrook,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020636-CA
 

F I L E D
(April 8, 2004)
 

2004 UT App 98

 

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Fourth District, Heber Department

The Honorable Donald J. Eyre Jr.

Attorneys: Sidney Balthasar Unrau, Provo, for Appellant

Mark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee

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Before Judges Billings, Jackson, and Thorne.

PER CURIAM:

Appellant Justin Walter Holbrook appeals his conviction of one count of sexual abuse of a child, a third degree felony, and one count of lewdness involving a child, a class A misdemeanor. This case is before the court on a sua sponte motion for summary dismissal.

After the jury verdict, but before sentencing, Holbrook filed a motion for arrest of judgment under rule 23 of the Utah Rules of Criminal Procedure alleging that he had been under the influence of medication during trial and "his cognitive abilities were impaired so as to render him incompetent to testify in his own behalf." On May 31, 2002, the trial court sentenced Holbrook and entered the Judgment, Sentence, and Commitment. However, the court deferred a ruling on the motion to arrest judgment because Holbrook's counsel indicated that a motion for new trial would be filed. The court ordered that any motion for new trial must be filed no later than June 14, 2002. Holbrook did not file a motion for new trial. The court entered an order denying the motion to arrest judgment on July 31, 2002. On August 8, 2002, Holbrook filed a notice of appeal.

A motion to arrest judgment must be filed prior to the imposition of sentence. See Utah R. Crim P. 23. Unlike a motion for new trial under rule 24 of the Utah Rules of Criminal Procedure, a motion to arrest judgment under rule 23 does not toll the time for appeal. See Utah R. App. P. 4(b); see also State v. Putnik, 2002 UT 122,¶3, 63 P.3d 91. Even if the motion to arrest judgment could be construed as the equivalent of a motion for new trial, as Holbrook urges, it would be untimely. A motion for new trial is timely if filed "within ten days after imposition of sentence, or within such further time as the court may fix during the ten-day period." Utah R. Crim. P. 24(c). Thus, a motion for new trial filed before sentencing is premature and does not operate to toll the time for appeal. See Putnik, 2002 UT 122 at ¶8; State v. Vessey, 957 P.2d 1239, 1240 (Utah Ct. App. 1998). "In a criminal case, it is 'the sentence itself which constitutes a final judgment from which appellant has the right to appeal.'" State v. Bowers, 2002 UT 100,¶4, 57 P.3d 1065 (citation omitted). The time for appeal commenced to run on May 31, 2002, with the entry of the judgment and sentence, and Holbrook must have filed a notice of appeal no later than Monday, July 1, 2002. See id.

Holbrook urges the court to consider the appeal in the interest of justice and also argues that judicial economy will be served by allowing the appeal to proceed. The "30-day period for filing [a] notice of appeal in a criminal case . . . is jurisdictional and cannot be enlarged by this [c]ourt." Id. at ¶5. Accordingly, because Holbrook's notice of appeal was filed "outside the 30-day period for filing a notice of appeal, this court lacks jurisdiction over his appeal." Id.

We dismiss the appeal for lack of jurisdiction.

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Judith M. Billings,

Presiding Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge