State v. Harmon

State v. Harmon

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Roy S. Harmon,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20050178-CA
 

F I L E D
(May 19, 2005)
 

2005 UT App 219

 

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Fourth District, Fillmore Department, 045700015

The Honorable Donald J. Eyre, Jr.

Attorneys: Roy S. Harmon, Salt Lake City, Appellant Pro Se

John D. Holliday, Fillmore, for Appellee

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Before Judges Billings, Bench, and Jackson.

PER CURIAM:

    This matter is before the court on a sua sponte motion for summary disposition. This case originated in the East Millard Justice Court. Roy S. Harmon did not appear for trial, which was held in absentia. Harmon appealed to the district court. Following a trial de novo, Harmon was convicted of speeding. See Utah Code Ann. § 41-6-46 (1998). Harmon appeals.

    Utah Code section 78-5-120 governs appeals from justice courts. See id. § 78-5-120 (2002). Section 78-5-120(7) states that "[t]he decision of the district court is final and may not be appealed unless the district court rules on the constitutionality of a statute or ordinance." Id. § 78-5-120(7). "By enacting [section 78-5-120] the Utah Legislature . . . specifically and intentionally limited the issues that may be appealed from a district court's judgment." State v. Hinson, 966 P.2d 273, 276 (Utah Ct. App. 1998). Accordingly, "absent an issue regarding the constitutionality of a statute or ordinance, the decision of the district court is final and this court has no jurisdiction to hear an appeal thereof." Id. at 277.

    Although Harmon asserted below that section 78-5-120(7) itself was unconstitutional, the district court did not rule on this motion. Therefore, this appeal is not taken from a district court ruling on the constitutionality of a statute or ordinance.(1)

    In addition, Harmon's claim does not constitute a challenge to the constitutionality of a specific statute or ordinance. To rule otherwise would allow Harmon to circumvent the limitations imposed by section 78-5-120(7).

    As a result, this appeal is not within our appellate jurisdiction. Once this court has determined that it lacks jurisdiction, "it retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989).

    Finally, the State requests attorney fees and costs pursuant to Utah Rule of Appellate Procedure 33 as a sanction for a "groundless and frivolous appeal." A dismissal of the appeal for lack of jurisdiction precludes consideration of the motion for sanctions, which is based upon lack of substantive merit.

    Accordingly, the appeal is dismissed.

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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. Even if this court had jurisdiction, Harmon's appeal is without merit. Harmon appears to argue that section 78-5-120(7) violates Article I, Section 12 of the Utah Constitution, which states, "In criminal prosecutions the accused shall have the right . . . to appeal in all cases." Utah Const. art. I, § 12. In Monticello v. Christensen, 788 P.2d 513 (Utah 1990), the Utah Supreme Court rejected this very argument, holding that, "the right to an 'appeal' from a court not of record is satisfied by provision for a trial de novo in a court of record." Id. at 516.