Robertson v. State

Robertson v. State

IN THE UTAH COURT OF APPEALS
 

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Roy Don Robertson,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040534-CA
 

F I L E D
(February 3, 2005)
 

2005 UT App 48

 

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Seventh District, Price Department

The Honorable Scott N. Johansen

Attorneys: Roy Don Robertson, Duchesne, Appellant Pro Se

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Before Judges Billings, Greenwood, and Thorne.

PER CURIAM:

    Roy Don Robertson appeals the denial of his petition for post-conviction relief. This case is before the court on a sua sponte motion for summary disposition. Based upon our review of the district court record, we dismiss the appeal for lack of jurisdiction.

    The district court denied the petition for post-conviction relief in a ruling signed and entered on May 13, 2004. Accordingly, the notice of appeal must have been filed on or before Monday, June 14, 2004. The district court clerk stamped the notice of appeal as "filed" on June 16, 2004, two days after the time for filing a timely notice of appeal.

    Generally, a notice of appeal must be filed within thirty days after entry of the judgment being appealed. See Utah R. App. P. 4(a). However, rule 4(f) of the Utah Rules of Appellate Procedure contains an exception to the general rule, stating:

    If an inmate confined in an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely filed if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a notarized statement or written declaration setting forth the date of deposit and stating that first-class postage has been prepaid.

    Although Robertson states in his docketing statement that he is an inmate confined in the Utah State Prison and cites rule 4(f), neither the district court record, nor the file on appeal, contains any "notarized statement or written declaration" stating that the notice of appeal was placed, first-class postage prepaid, in a correctional institution's mail system on or before June 14, 2004. Utah R. App. P. 4(f). In the absence of proof of compliance with the prerequisites of rule 4(f), we cannot apply the exception contained in that rule.

    Accordingly, we dismiss the appeal for lack of jurisdiction based upon an untimely notice of appeal.

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Judith M. Billings,

Presiding Judge

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge