Sherratt v. Friel

Sherratt v. Friel

IN THE UTAH COURT OF APPEALS
 

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William Sherratt,

Petitioner and Appellant,

v.

Client Friel, Warden,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040541-CA
 

F I L E D
(October 15, 2004)
 

2004 UT App 364

 

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Fifth District, Cedar City Department

The Honorable G. Michael Westfall

Attorneys: William Sherratt, Draper, Appellant Pro Se

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Before Judges Billings, Bench, and Orme.

PER CURIAM:

William Sherratt appeals the dismissal of his second petition for post-conviction relief. This case is before the court on a sua sponte motion for summary disposition.

Sherratt filed a motion seeking recusal of the three members of the panel that summarily affirmed the dismissal of an earlier petition for post-conviction relief. See Sherratt v. Friel, 2003 UT App 269 (per curiam). Because this case is before a panel that does not include any of the judges who sat on the previous case, we deny the motion for recusal as moot. Sherratt also filed a motion for a remand under rule 23B of the Utah Rules of Appellate Procedure. Rule 23B applies only to a first appeal of right in a criminal case, and does not apply to this appeal from post-conviction proceedings. See Utah R. App. P. 23B(a) (stating a party to an appeal in a criminal case may move the court for a remand). Accordingly, we deny the motion for remand. Finally, Sherratt moves the court to certify this case to the Utah Supreme Court. This appeal is within the original jurisdiction of the supreme court as a challenge to a conviction for a first degree felony; however, the supreme court transferred the appeal to this court for disposition. See Utah Code Ann. § 78-2-2(4) (2002). We may certify only those matters "over which the Court of Appeals has original appellate jurisdiction." Utah Code Ann. § 78-2a-3(3) (2002). Accordingly, we deny the request to certify the case to the supreme court.

The district court entered its "Order Dismissing Petition for Extraordinary Relief" on January 23, 2004. On February 9, 2004, Sherratt filed a "Motion for Extension of Time to File a Petition for Rehearing" and a separate "Motion for Continuance of Rehearing," neither of which was granted. On February 13, 2004, Sherratt filed a "Petition for Rehearing and Appointment of Counsel in the Interests of Justice." The petition for rehearing contended, in relevant part, that the court erred in failing to appoint counsel to assist in the petition for post-conviction relief, and that the court erred in its decision to dismiss the petition as frivolous on its face. Sherratt concedes that the Utah Rules of Civil Procedure do not provide for a petition for rehearing from a district court judgment.

On May 12, 2004, the district court entered an order denying the petition for rehearing based upon its conclusions that the allegations "do not alter the [c]ourt's conclusion that the petition, even if augmented by the allegations and arguments set forth in the Petition for Rehearing, is frivolous on its face." Sherratt filed a notice of appeal on May 24, 2004.

The January 23, 2004 order dismissing the petition for post-conviction relief was a final, appealable judgment. "Although the time for filing a notice of appeal may be extended by the filing of any of the post-judgment motions enumerated in rule 4(b) [of the Utah Rules of Appellate Procedure], all of these motions must be filed within ten days after entry of the judgment." Wisden v. Bangerter, 893 P.2d 1057, 1057 (Utah 1995). Sherratt did not file any timely post-judgment motion enumerated in rule 4(b); therefore, no motion operated to extend the time for appeal from the final judgment. Even if we were to construe the petition for rehearing as the functional equivalent of a motion for new trial, it was not filed within ten days of entry of the judgment and did not extend the time to appeal from the dismissal of the petition for post-conviction relief.

Sherratt argues that because a timely petition for rehearing filed after a decision of the Utah Court of Appeals extends the time for filing a petition for a writ of certiorari to the Utah Supreme Court, his petition for rehearing from a district court judgment should extend the appeal time. This position is without merit because the rules of appellate procedure relied upon by Sherratt do not apply to district court proceedings. Alternatively, Sherratt claims that the January 23, 2004 order dismissing his petition was not final because his petition was effectively "granted" when the district court considered, then denied, the petition. This claim is without merit.

To the extent that we consider this appeal to have been taken solely from the denial of the petition for rehearing, we conclude that the court did not err in denying it. The petition claimed that the district court erred in denying a request for appointed counsel, in failing to hold an evidentiary hearing, and in denying the petition on the merits. Each of these claims could have been, but was not, raised in a timely motion for new trial. "Utah courts have 'consistently held that our rules of civil procedure do not provide for a motion for reconsideration of a trial court's order or judgment.'" Davis v. Grand County Serv. Area, 905 P.2d 888, 891 (Utah Ct. App. 1995) (citation omitted).

Accordingly, we dismiss the appeal from the dismissal of the petition for post-conviction relief for lack of jurisdiction.

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Judith M. Billings,

Presiding Judge

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Russell W. Bench,

Associate Presiding Judge

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Gregory K. Orme, Judge