Tucker v. State

IN THE UTAH COURT OF APPEALS
 

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Jeff Tucker,

Petitioner and Appellant,

v.

State of Utah,

Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040814-CA
 

F I L E D
(January 21, 2005)
 

2005 UT App 28

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Third District, Salt Lake Department

The Honorable Glenn K. Iwasaki

Attorneys: Jeff Tucker, Oxford, WI, Appellant Pro Se

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

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Before Judges Billings, Greenwood, and Thorne.

PER CURIAM:

    Jeff Tucker appeals a summary judgment disposing of his petition for extraordinary relief. In the original appeal from the dismissal of the petition, we reversed and remanded only insofar as the district court dismissed a claim that the parole revocation hearing was unreasonably delayed without good cause. See Tucker v. State, 2003 UT App 213. Tucker now seeks to appeal from the summary judgment order denying that remaining claim on its merits. This appeal is before the court on a sua sponte motion for summary dismissal.

    The district court entered a ruling granting the State's summary judgment motion on March 30, 2004. Tucker filed an "Inquiry and Request for Clarification" on April 13, 2004, also requesting the district court to "toll" the time for appeal. Tucker filed his "Notice of Appeal With Memorandum in Support of Untimely Filing" on September 21, 2004, requesting the district court to accept the notice of appeal as timely. However, Tucker did not file a timely motion to extend the time for appeal under rule 4(e) of the Utah Rules of Appellate Procedure. See Utah R. App. P. 4(e) (allowing motion to extend to be filed in district court within thirty days after expiration of the original thirty-day appeal period). The request for clarification was not a motion tolling the time for appeal under rule 4(b) of the Utah Rules of Appellate Procedure.

    A notice of appeal must "be filed with the clerk of the trial court within thirty days after the date of entry of the judgment or order appealed." Utah R. App. P. 4(a). "If an appeal is not timely filed, this court lacks jurisdiction to hear the appeal." Serrato v. Utah Transit Auth., 2000 UT App 299,¶7, 13 P.3d 616. The only means to extend the time for appeal is through a timely motion filed in the district court under rule 4(e). The request to accept the untimely notice of appeal, which was filed almost five months after expiration of the time to file an appeal, was not timely under rule 4(e). Although an appellate court may review the trial court's determination of a timely rule 4(e) motion, it cannot consider a claim of good cause or excusable neglect in the first instance as a basis to exercise jurisdiction over an untimely appeal. See Utah R. App. P. 2 (precluding appellate courts from suspending or modifying rule 4(e)); see generally Reisbeck v. HCA Health Serv., 2000 UT 48, 2 P.3d 447 (reviewing decision on rule 4(e) motion).

    Tucker also filed a "Motion for Recall of Mandate for Good Cause," which requests this court to set aside its decision on his original appeal in Case No. 20020191-CA. That case was resolved by our memorandum decision issued on June 26, 2003, see Tucker v. State, 2003 UT App 213, and this court denied a petition for rehearing on July 25, 2003. We lack jurisdiction to set aside our previous decision and do not consider the motion filed in this appeal from a completely separate decision.

    Once this court determines that it lacks jurisdiction over an appeal, "we retain only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989). Accordingly, we dismiss the appeal for lack of jurisdiction. We also deny the "Motion for Recall of Mandate for Good Cause Shown."

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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