Orem City v. Solur

Orem City v. Solur

IN THE UTAH COURT OF APPEALS

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Orem City,

Plaintiff and Appellee,

v.

Eduard Solur,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication

Case No. 20050318-CA

F I L E D

(June 3, 2005)

2005 UT App 253

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Fourth District, Orem Department, 051200440

The Honorable John C. Backlund

Attorneys: Eduard Solur, Orem, Appellant Pro Se

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Before Judges Billings, Jackson, and Orme.

PER CURIAM:

Eduard Solur appeals his conviction for violation of Utah Code section 76-5-102, a class B misdemeanor. See Utah Code Ann. § 76-5-102 (2003). This case is before the court on its own motion for summary disposition.

Solur entered a plea of no contest to violation of Utah Code section 76-5-102 on March 28, 2005. This plea was never withdrawn. Based upon this plea, the district court entered a suspended jail sentence and entered a fine and probation against Solur on April 4, 2005. This appeal followed.

Utah Code section 77-13-6 provides: "A plea of guilty or no contest may be withdrawn only upon leave of the court and a showing that it was not knowingly and voluntarily made." Utah Code Ann. § 77-13-6(2)(a) (Supp. 2004). A request to withdraw a plea "shall be made by motion before sentence is announced." Id. § 77-13-6(2)(b). If a defendant fails to make a timely request to withdraw a plea, any challenge to the plea must be made pursuant to the Post-Conviction Remedies Act and rule 65C of the Utah Rules of Civil Procedure. See id. § 77-13-6(2)(c).

The timely filing of a notice to withdraw a plea is jurisdictional. See State v. Reyes, 2002 UT 13,¶¶3-4, 40 P.3d 630. Failure to file a timely motion to withdraw a guilty plea "extinguishes a defendant's right to challenge the validity of the guilty plea on appeal." Id. at ¶3.

Because Solur entered a plea of no contest and failed to file a timely motion to withdraw his plea, this court lacks jurisdiction to consider Solur's appeal. See id. at ¶¶3-4. Once a 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).

Accordingly, this appeal is dismissed.

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Judith M. Billings,

Presiding Judge

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Norman H. Jackson, Judge

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Gregory K. Orme, Judge