Longyear v. Friel

IN THE UTAH COURT OF APPEALS
 

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Bruce Longyear,

Petitioner and Appellant,

v.

Clint Friel, Warden, Utah State Prison, and Board of Pardons,

Respondents and Appellees.

MEMORANDUM DECISION

(Not For Official Publication)
 

Case No. 20040989-CA
 

F I L E D

March 3, 2005
  2005 UT App 106

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Third District, Salt Lake Department

The Honorable J. Dennis Frederick

Attorneys: Bruce Longyear, Hurricane, Appellant Pro Se

Mark L. Shurtleff and Natalie A. Wintch, Salt Lake City, for Appellee

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Before Judges Greenwood, Jackson, and Thorne.

PER CURIAM:

    Bruce Longyear appeals from the dismissal of his petition for post-conviction relief. This case is before the court on its own motion for summary disposition.

    On October 25, 2004 the district court granted Appellees' motion for summary judgment pursuant to a minute entry ruling. The district court entered a written order dismissing Longyear's petition on November 16. However, on November 10, Longyear filed a motion for rehearing pursuant to rule 59 of the Utah Rules of Civil Procedure. There is no indication in the record that the district court disposed of this motion.

    An appeal may be taken from all final orders and judgments. See Utah R. App. P. 3(a). Absent a final order, this court lacks jurisdiction and must dismiss the appeal. See Regan v. Blount, 1999 UT App 154,¶4, 978 P.2d 1051. The finality of an order or judgment may be affected by certain post-trial motions. See id. Under Utah Rule of Appellate Procedure 4(b), a timely motion for new trial under Utah Rule of Civil Procedure 59 "suspends the finality of the challenged order or judgment rendering a notice of appeal filed prior to disposition of such a motion by entry of a signed order [ineffective] to confer jurisdiction on an appellate court." Regan, 1999 UT App 154 at ¶4; see also Utah R. App. P. 4(b). Moreover, "we have previously held that 'a motion under the Utah Rules of Civil Procedure of the type described in Utah Rule of Appellate Procedure 4(b) that is filed prior to the entry of the judgment is timely for purposes of tolling the appeal period.'" Rosas v. Eyre, 2003 UT App 414,¶16, 82 P.3d 185 (quoting Regan, 1999 UT App 154 at ¶6).

    Longyear's motion for rehearing is in substance a motion for new trial under Utah Rule of Civil Procedure 59 and therefore tolled the time for appeal. See Watkiss & Campbell v. Foa & Son, 808 P.2d 1061, 1064-65 (Utah 1991). To vest jurisdiction in the appellate court, the notice of appeal must be filed after entry of the order disposing of such a motion. See Utah R. App. P. 4(b). No such order was entered.(1) "An appeal filed before a formal post-judgment order is entered is ineffective and a new appeal has to be filed within thirty days after the entry of the formal order." State v. Gardner, 2001 UT 41,¶10, 21 P.3d 1043. Because Longyear's motion for rehearing was never disposed of, this appeal is premature. As a result, "we have no alternative but to dismiss the appeal for lack of jurisdiction." Regan, 1999 UT App 154 at ¶9.

    This appeal is dismissed without prejudice to the timely filing of an appeal from a final order disposing of the post-judgment motion.

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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

1. The only order entered was the November 16 order granting summary judgment. However, as in Rosas, "there is nothing in the record that indicates that the trial court addressed, or was even aware of," Longyear's motion when it signed the November 16 order. Rosas v. Eyre, 2003 UT App 414,¶17, 82 P.3d 185.