State v. Petty

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Jerry Robert Petty,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020558-CA
 

F I L E D
(April 29, 2004)
 

2004 UT App 138

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Third District, Salt Lake Department

The Honorable Judith S. Atherton

Attorneys: David P.S. Mack and Joan C. Watt, Salt Lake City, for Appellant

Mark L. Shurtleff and Matthew D. Bates, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Jackson.

DAVIS, Judge:

Defendant argues that his robbery and theft convictions, resulting from his voluntary and unconditional guilty pleas, should be reversed, and the underlying charges dismissed, because the State failed to adhere to the requirements of the Interstate Agreement on Detainers (IAD), codified at Utah Code Annotated sections 77-29-5 to -11 (2003).(1) The State argues that this court does not have jurisdiction to consider Defendant's appeal because Defendant never moved to withdraw his guilty pleas. Whether Defendant can assert his IAD claims after entering his guilty pleas, and without moving to withdraw his guilty pleas, is a question of law that we review for correctness. See State v. Brocksmith, 888 P.2d 703, 704 (Utah Ct. App. 1994) (applying correctness standard when reviewing whether defendant waived IAD rights by entering voluntary, unconditional guilty plea).

"[T]he protections afforded under the IAD are not jurisdictional in nature. Accordingly, [the defendant] could waive his right to assert any violations of the IAD as he could any other nonjurisdictional error." Id. at 705. By voluntarily entering an unconditional guilty plea, a defendant waives his or her IAD rights. See id. Further, in order for us to review convictions resulting from voluntary and unconditional guilty pleas for nonjurisdictional errors, a defendant must first timely move to withdraw the guilty pleas. See State v. Reyes, 2002 UT 13,¶¶3-4, 40 P.3d 630 (refusing to consider nonjurisdictional errors because the supreme court did not have jurisdiction to consider the appeal where defendant failed to file timely motion to withdraw his guilty plea).

In this case, Defendant voluntarily entered unconditional guilty pleas to robbery and theft charges. Subsequent to the entry of these guilty pleas, Defendant appealed, arguing that the State violated his rights under the IAD. However, Defendant never filed a timely motion to withdraw his guilty pleas. By entering his guilty pleas, Defendant "waive[d] his right to assert any violations of the IAD as he could any other nonjurisdictional error." Brocksmith, 888 P.2d at 705. Because Defendant's rights under the IAD are nonjurisdictional in nature, see id., and because Defendant never filed a timely motion to withdraw his guilty plea, we lack the jurisdiction to consider Defendant's appeal. See Reyes, 2002 UT 13 at ¶¶3-4. Once a court has determined that it lacks jurisdiction, it "retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989).

We therefore dismiss Defendant's appeal and affirm his convictions.

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James Z. Davis, Judge

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WE CONCUR:

______________________________

Russell W. Bench,

Associate Presiding Judge

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Norman H. Jackson, Judge

1. Notwithstanding any record support for the proposition that Defendant was actually transported to state court while in federal custody.