Salt Lake City v. Venord

Salt Lake City v. Venord

IN THE UTAH COURT OF APPEALS

----ooOoo----

Salt Lake City,

Plaintiff and Appellee,

v.

Jean Fred Venord,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20030501-CA

F I L E D

(June 17, 2004)

2004 UT App 207

-----

Third District, Salt Lake Department

The Honorable Anthony B. Quinn

Attorneys: Heather Johnson, Debra Meek Nelson, and Michael Misner, Salt Lake City, for Appellant

Simarjit S. Gill and Augustus G. Chin, Salt Lake City, for Appellee

-----

Before Judges Davis, Jackson, and Thorne.

PER CURIAM:

John Fred Venord entered a conditional guilty plea preserving a right to appeal the denial of a motion to dismiss the case because he was not tried within 120 days of invoking Utah Code Annotated section 77-29-1 (2003). Salt Lake City concedes that the prayer for relief should be granted.

Venord invoked section 77-29-1 by delivering a Notice and Request for Disposition of Pending Charges to the Utah County Jail on October 1, 2002. The notice was initially incorrectly transmitted to the Salt Lake County Attorney, which responded that it had no pending charges against Venord. Venord filed two or more grievances complaining of the inaction on the notice. At a hearing on the motion to dismiss for failure to bring the case to trial within 120 days, the Salt Lake City Prosecutor denied receipt of the notice. The district court concluded that Venord should have taken further steps to ensure that the jail properly forwarded the notice to the appropriate prosecutor and court and denied the motion to dismiss. This appeal followed Venord's entry of a conditional guilty plea preserving his right to appeal the denial of the motion to dismiss.(1)

After Venord filed his opening brief, Salt Lake City discovered, and advised this court, "that the Appellant's 120 Day Disposition was in fact received at the Salt Lake City Prosecutor's Office on or about October 16, 2002." The district court's denial of the motion to dismiss was based, in part, on the representation that the notice had not been received by the city prosecutor as a result of the jail's administrative mistake in incorrectly transmitting the notice. Salt Lake City now candidly concedes that this factual representation was incorrect. On this basis, Salt Lake City does not oppose the relief sought on appeal.

It is well established that the prosecutor is "responsible for complying with section 77-29-1." State v. Heaton, 958 P.2d 911, 915 (Utah 1998). "When a prisoner delivers a written notice pursuant to the detainer statute, the prosecutor has an affirmative duty to have the defendant's matter heard within the statutory period." Id. "However, where the prosecutor's failure is inaction . . . the trial court may not conclude that the prosecutor's failure is supported by 'good cause.'" Id. at 916.

Accordingly, if the trial court had been presented with accurate facts regarding the prosecutor's receipt of the notice, it could not have found good cause for failure to comply with section 77-29-1 and must have dismissed the case. See State v. Wagenman, 2003 UT App 146,¶7, 71 P.3d 184 ("Section 77-29-1 directs the court to dismiss criminal charges against a defendant if that defendant is not tried within 120 days of invoking section 77-29-1(4) unless 'good cause [is] shown in open court.'" (citation omitted)).

We reverse the conviction, and remand with the direction to dismiss the criminal charges with prejudice.

______________________________

James Z. Davis, Judge

______________________________

Norman H. Jackson, Judge

______________________________

William A. Thorne Jr., Judge

1. We previously remanded this case to the district court for supplementation of the record to reflect that Venord entered a conditional plea preserving his right to appeal the denial of his Motion to Dismiss for Failure to Prosecute within 120 days. The district court's order, dated March 30, 2004, resolved this jurisdictional issue.