State v. Johnson

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Terry L. Johnson,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20041017-CA
 

F I L E D
(February 17, 2005)
 

2005 UT App 75

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Third District, Salt Lake Department

The Honorable William W. Barrett

Attorneys: Margaret P. Lindsay, Orem, for Appellant

Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee

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Before Judges Greenwood, Jackson, and Thorne.

PER CURIAM:

    Terry Johnson seeks to appeal the trial court's denial of his motion for new trial. This is before the court on its own motion for summary disposition based on lack of jurisdiction due to the absence of a final order.

    In November 2004, the trial court denied Johnson's motion for new trial. In its minute entry recording the denial, the court directed counsel to prepare a final order reflecting the ruling. Johnson filed his notice of appeal from the minute entry.

    Appeals may be taken from final orders and judgments. See Utah R. App. P. 3(a). Certain post-judgment motions suspend the finality of a judgment and toll the time for appeal. See Utah R. App. P. 4(b). A motion for new trial, such as Johnson's motion, is one of the motions that suspends the finality of a judgment. See id. A notice of appeal filed before the entry of a final order disposing of the motion for new trial "shall have no effect." Id.

    Furthermore, although the trial court indicated its ruling regarding Johnson's motion in its minute entry, the minute entry is not a final order. "A signed minute entry will not be considered a final order where its language indicates that it is not intended as final." State v. Leatherbury, 2003 UT 2,¶9, 65 P.3d 1180. "[W]here further action is contemplated by the express language of the [entry], it cannot be a final determination susceptible of enforcement." Id. Because the minute entry directed further action, it is not a final order. Absent a final order disposing of Johnson's motion for new trial, his appeal is premature and this court lacks jurisdiction to hear the appeal. See Utah R. App. P. 4(b).

    Accordingly, this appeal is dismissed without prejudice to the timely filing of a notice of appeal after a final order is entered.

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Pamela T Greenwood, Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge