State v. Tiscareno

State v. Tiscareno

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellant,

v.

Maria A. Tiscareno,

Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20050128-CA
 

F I L E D
(April 14, 2005)
 

2005 UT App 176

 

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Third District, Silver Summit Department

The Honorable Deno Himonas

Attorneys: Mark L. Shurtleff and J. Frederic Voros Jr., Salt Lake City, for Appellant

James C. Bradshaw, Mark R. Moffat and Ann Marie Taliaferro, Salt Lake City, for Appellee

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Before Judges Davis, Jackson, and Thorne.

PER CURIAM:

    This case is before the court on defendant Maria A. Tiscareno's motion for summary disposition. The district court entered a Memorandum Decision and Order dated January 27, 2004 (the January 27, 2004 Order). Tiscareno argues that the January 27, 2004 Order granted a new trial pursuant to rule 24 of the Utah Rules of Criminal Procedure. The State argues that the January 27, 2004 Order was an "arrest of judgment" pursuant to rule 23 of the Utah Rules of Criminal Procedure.

    Utah Code section 77-18a-1(2) describes the orders and judgments from which the prosecution may appeal. See Utah Code Ann. § 77-18a-1(2) (Supp. 2004). While an order granting a motion to arrest judgment is appealable, a decision to grant a motion for new trial is not. See id.; see also State v. Owens, 753 P.2d 976 (Utah Ct. App. 1988). "Section 77-18a-1(2) is restrictive rather than permissive and, thus, the State has no right to appeal except as expressly provided therein." State v. Stirba, 972 P.2d 918, 920 n.1 (Utah Ct. App. 1998).

    The State argues that the district court did not have jurisdiction to grant a new trial because a sentence had not yet been issued. This court specifically rejected this argument in Owens. See Owens, 753 P.2d at 978.

    The State also argues that the district court in reality granted an arrest of judgment. This argument is belied by the January 27, 2004 Order, which specifically granted a new trial pursuant to rule 24 of the Utah Rules of Criminal Procedure and set a pretrial conference to discuss new trial dates. The district court found that trial counsel performed ineffectively when counsel failed to object to certain jury instructions and that a new trial was required as a result. The district court granted a new trial to correct an error made in the district court. See Utah R. Crim. P. 24(a) ("The court may, upon motion of a party or upon its own initiative, grant a new trial in the interest of justice if there is any error or impropriety which had a substantial adverse effect upon the rights of a party.").

    Therefore, we hold that the January 27, 2004 Order granted a new trial pursuant to rule 24 of the Utah Rules of Criminal Procedure and was not appealable by the State. Accordingly, this appeal is dismissed.

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James Z. Davis, Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge