State v. Schultz

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Rory Jack Schultz,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030399-CA
 

F I L E D
(June 4, 2004)
 

2004 UT App 188

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Third District, Salt Lake Department

The Honorable Ann Boyden

Attorneys: Lori J. Seppi, Salt Lake City, for Appellant

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

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Before Judges Billings, Greenwood, and Orme.

PER CURIAM:

This case is before the court on Defendant's motion to clarify jurisdiction and the State's cross-motion to dismiss.

Under rule 4(a) of the Utah Rules of Appellate Procedure, a notice of appeal "shall be filed . . . within 30 days after the date of entry of the judgment or order appealed from." This court does not have jurisdiction to consider a notice of appeal that is not timely filed under rule 4. See, e.g., State v. Houskeeper, 2002 UT 118,¶23, 62 P.3d 444.

Defendant concedes that he "failed to file a timely notice of appeal." However, Defendant contends that this court should remand to the trial court for resentencing nunc pro tunc so that he may properly perfect an appeal. When this court does not have jurisdiction, it "retains only the authority to dismiss the [appeal.]" Varian-Eimac v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989) (per curiam). In the present case, Defendant's remedy, if any, is not a remand by this court, but lies in the district court. See State v. Johnson, 635 P.2d 36, 38 (Utah 1981); see also Manning v. State, 2004 UT App 87,¶9, 496 Utah Adv. Rep. 27.

Accordingly, we dismiss Defendant's appeal and deny Defendant's request for a remand.

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Judith M. Billings,

Presiding Judge

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge