State v. Graham

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Richard Anthony Graham,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20041067-CA
 

F I L E D
(April 21, 2005)
 

2005 UT App 184

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Third District, Sandy Department

The Honorable Royal I. Hansen

Attorneys: Joan C. Watt and Karen Stam, Salt Lake City, for Appellant

Mark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Jackson.

PER CURIAM:

    Richard Graham appeals the trial court's denial of his motion to dismiss several felony charges filed against him in 1999. This is before the court on Graham's motion for remand and on the State's motion to dismiss.

    The State argues that this court lacks jurisdiction over this appeal because it is not from a final order. The State's argument is well-taken.

    This court does not have jurisdiction over an appeal unless it is taken from a final judgment or qualifies for an exception to the final judgment rule. See Loffredo v. Holt, 2001 UT 97,¶10, 37 P.3d 1053; Utah R. App. P. 3. Utah Rule of Appellate Procedure 5 provides an exception to the final judgment rule, setting forth the procedure and standards for a petition for interlocutory appeal. See Utah R. App. P. 5. Under rule 5, a petition for interlocutory appeal must be filed within twenty days of the trial court's order. See id.

    In a criminal case, the sentence constitutes the final judgment from which to appeal. See State v. Harris, 2004 UT 103,¶20, 104 P.3d 1250. The denial of a motion to dismiss a criminal case is merely an interlocutory order. See id. Here, Graham seeks to appeal an interlocutory order denying his motion to dismiss the charges. Thus, his appeal is governed by rule 5, requiring a petition to appeal to be filed within twenty days of the trial court's order. See Utah R. App. P. 5(a). However, Graham did not file a timely petition for interlocutory appeal, but rather filed a notice of direct appeal which is insufficient to provide this court with jurisdiction over this appeal.(1)

    Where an appeal is not properly taken, an appellate court lacks jurisdiction and must dismiss the case. See Bradbury v. Valencia, 2000 UT 50,¶8, 5 P.3d 649. Accordingly, this appeal is dismissed without prejudice to the filing of a timely notice of appeal after the entry of a final judgment or order.

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Judith M. Billings,

Presiding Judge

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Russell W. Bench,

Associate Presiding Judge

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Norman H. Jackson, Judge

1. Graham essentially acknowledges the interlocutory nature of the order appealed in his own motion for remand. His motion is necessarily disposed of by the dismissal of this appeal.