Rivas v. State

IN THE UTAH COURT OF APPEALS

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Pedro Rivas,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030797-CA
 

F I L E D
(March 11, 2004)
 

2004 UT App 64

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Third District, Salt Lake Department

The Honorable William B. Bohling

Attorneys: Pedro Rivas, Draper, Appellant Pro Se

Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee

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Before Judges Davis, Jackson, and Thorne.

PER CURIAM:

Pedro Rivas seeks to appeal the dismissal of his petition for post-conviction relief, filed in January of 2002. This case is before the court on the State's motion to dismiss for lack of jurisdiction.

In January 2002, Rivas filed a petition for post-conviction relief and a motion for appointment of counsel. The State responded with a motion to dismiss the petition on August 7, 2002. Instead of filing a memorandum in opposition to the State's motion, Rivas filed a motion to stay the proceedings pending appointment of counsel, so that his anticipated counsel could respond to the motion to dismiss.

The State filed a Notice to Submit its motion on October 17, 2002, noting that no opposition to the motion had been filed. The Third District Court granted the State's motion and dismissed Rivas's petition on November 1, 2002. On November 15, 2002, Rivas filed a motion for reconsideration of the dismissal of his petition, noting he was still awaiting disposition of his motion for counsel and motion to stay the proceedings.

Rivas's motion for reconsideration has been briefed, but has not been submitted for decision, and remains pending. In the meantime, Rivas filed a Notice of Appeal on September 23, 2003, appealing the dismissal of his petition.

Rule 4(b) of the Utah Rules of Appellate Procedure provides that a timely motion filed pursuant to Rule 52 or Rule 59 of the Utah Rules of Civil Procedure tolls the time for filing an appeal from the judgment entered. Instead, "the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion." Utah R. App. P. 4(b). Accordingly, a notice of appeal filed before the disposition of the specified post-judgment motions "shall have no effect," and "a new notice of appeal must be filed" within the prescribed time from the entry of the order disposing of the post-judgment motion. Id.

Rivas's motion, although titled as a motion for reconsideration, is in substance a motion for a new trial under Utah Rule of Civil Procedure 59, thus tolling the time for appeal. See Watkiss & Campbell v. Foa & Son, 808 P.2d 1061, 1064-65 (Utah 1991). Upon filing a timely Rule 59 motion, the finality of the judgment is suspended, "and a notice of appeal filed prior to disposition of such a motion by entry of a signed order is not effective to confer jurisdiction on an appellate court." Anderson v. Schwendiman, 764 P.2d 999, 1000 (Utah Ct. App. 1988) (per curiam). "[A]n appeal filed before a formal post-judgment order is entered is ineffective and a new appeal has to be filed within thirty days after the entry of the formal order." State v. Gardner, 2001 UT 41, ¶10, 23 P.3d 1044. With Rivas's motion for reconsideration pending, his appeal is premature, and does not confer jurisdiction on this Court.

We dismiss the appeal for lack of jurisdiction. Our dismissal is without prejudice to the filing of a timely notice of appeal of an order disposing of the post-judgment motion.

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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