State v. Stone

State v. Stone

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Todd Stone,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040181-CA
 

F I L E D
(October 21, 2004)
 

2004 UT App 369

 

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Third District, Salt Lake Department

The Honorable Joseph C. Fratto

The Honorable Michael K. Burton

Attorneys: Todd Stone, Salt Lake City, Appellant Pro Se

David E. Yocom and R. Josh Player, Salt Lake City, for Appellee

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Before Judges Davis, Jackson, and Orme.

PER CURIAM:

    Todd Stone appeals the denial of his civil post-conviction petition. This case is before the court on a sua sponte motion for summary disposition.

    On April 18, 2002, Stone entered a guilty plea to violation of a protective order. The district court entered its judgment and sentence on July 15, 2002, which included an order to pay restitution in the amount of $66.50. Stone originally filed a Notice of Appeal from these orders on April 22, 2003. This appeal was dismissed for lack of jurisdiction. See State v. Stone, 2003 UT App 449 (per curiam).

    On January 2, 2003, Stone filed a motion for post-conviction relief, purportedly pursuant to the Post-Conviction Remedies Act, Utah Code sections 78-35a-101 to -110 (the Act). The trial court found that the motion was without merit and denied it. Stone appeals this ruling.

    A petition for post-conviction relief is a collateral attack on a conviction and sentence and is not a substitute for direct appellate review. See Carter v. Galetka, 2001 UT 96,¶6, 44 P.3d 626. The Act denies eligibility for post-conviction relief upon any ground that "may still be raised on direct appeal," "was raised or addressed at trial or on appeal," or "could have been but was not raised at trial or on appeal." Utah Code Ann. § 78-35a-106(1)(a)-(c) (2002). See also Rudolph v. Galetka, 2002 UT 7,¶5, 43 P.3d 467 ("Any issues that were not addressed on direct appeal but could have been raised may not be raised for the first time in a post-conviction relief proceeding absent unusual circumstances.").

    Except for the issue of the restitution award of $66.50, all of the grounds for relief set forth in Stone's motion for post-conviction relief were raised or could have been raised at trial or on direct appeal. Therefore, the only issue before the court is whether Stone demonstrated a legitimate basis under the Act to set aside the trial court's restitution award of $66.50. We hold that Stone failed to make this showing, and the district court correctly denied post-conviction relief.

    Therefore, we summarily affirm the order of the trial court.

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James Z. Davis, Judge

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Norman H. Jackson, Judge

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Gregory K. Orme, Judge