State v. Wareham

State v. Wareham

IN THE UTAH COURT OF APPEALS
 

----ooOoo----

State of Utah,

Plaintiff and Appellee,

v.

Gregory Shane Wareham,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040931-CA
 

F I L E D
(March 31, 2005)
 

2005 UT App 150

 

-----

Seventh District, Monticello Department

The Honorable Lyle R. Anderson

Attorneys: Gregory Shane Wareham, Moab, Appellant Pro Se

Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Jackson, and Thorne.

PER CURIAM:

    This case is before the court on its own motion for summary dismissal for lack of jurisdiction as a result of an untimely notice of appeal. See Utah R. App. P. 10. Appellant Gregory Shane Wareham pleaded guilty to attempted escape, a class A misdemeanor, and domestic violence in the presence of a child, a class B misdemeanor. A Sentence, Judgment, and Commitment issued August 12, 2003. Wareham was sentenced to ninety days in jail, with credit for seventeen days already served, a fine of $1437.50, and restitution of $200. The remaining jail time was suspended upon successful completion of probation.

    On May 28, 2004, the trial court revoked Wareham's probation for failure to pay fines and restitution. The court imposed the ninety days jail time that had previously been suspended, again with seventeen days of credit for time served. On August 2, 2004, a review hearing was held and the court imposed ninety days jail time in lieu of payment of the fine. The court further ordered that restitution be reduced to a civil judgment. However, on August 26, 2004, the trial court issued an order that modified the August 2, 2004 order. In that order, the trial court gave Wareham credit for another seven days served in San Juan County jail and twenty eight days credit for time served in the Grand County jail. The court concluded that Wareham has served fifty two days of his ninety day commitment. The court ordered Wareham to serve a balance of thirty eight days.

    Between October 6, 2004 through October 19, 2004, Wareham filed numerous motions in the trial court including: a notice of appeal (filed October 6, 2004, but sent back to Wareham when he indicated to the court that he did not intend to file the notice); a motion to reconsider; a motion for writ of habeas corpus; a motion for a new trial; a motion to amend, dismiss, or expunge the conviction; a second motion to dismiss; and an amended motion to amend, dismiss, or expunge the conviction.

    In an order issued October 19, 2004, the trial court denied all the motions and, pursuant to Wareham's representation that he did not intend to file the notice of appeal, the court returned the pleading to Wareham. On October 21, 2004, however, Wareham filed another notice of appeal. In that notice, Wareham indicated he intended to appeal the trial court's orders of August 26, 2004 and October 6, 2004. No order issued on October 6, 2004. On October 27, 2004, an "Inmate Request Form" was filed. It was sent to this court because a notice of appeal had already been filed, but it was addressed to the trial court. This court construed the inmate request form as a motion to extend the time for filing the notice of appeal and requested the trial court to rule on the issue.

    The trial court issued a ruling on November 15, 2004, in which the trial court determined that the inmate request should not be construed as a motion for an extension to file a notice of appeal. The court further ruled that, if construed as such, an extension is not needed if Wareham seeks to appeal the October 19, 2004 order because the notice of appeal is timely. Lastly, the court determined that Wareham stated no grounds for the request and that it was not filed before thirty days after the initial deadline for filing the notice.(1)

    The State argues that the notice of appeal is untimely because it is not timely filed from the Sentence, Judgment, and Commitment, nor the order revoking probation, issued May 28, 2004. Nonetheless, Wareham may appeal the subsequent orders granting credit for time served and converting fines to incarceration. However, the notice of appeal must be timely filed from the order Wareham seeks to appeal.

    Wareham appears to claim that the trial court improperly overrode the jail's granting of good time by issuing orders altering the sentence. He argues "double jeopardy" by the court's alleged taking of his good time. He claims he was resentenced and time was added to his sentence. These issues relate to the August 26, 2004 order and the subsequent October 19, 2004 order. The notice of appeal was untimely filed from the August 26, 2004 order. Because the trial court denied Wareham's request for an extension of time to file the notice of appeal, Wareham's time to file the notice was not extended.

    With respect to the October 19, 2004 order, Wareham did not indicate he sought to appeal that order. His notice of appeal sought to appeal orders issued August 26, 2004 and October 6, 2004. No mention is made of the October 19, 2004 order and no order issued from the trial court on October 6, 2004. Rule 3(d) of the Utah Rules of Appellate Procedure requires that the notice of appeal "designate the judgment or order, or part thereof appealed from." Further "[t]his requirement is jurisdictional because the object of a notice of appeal is to advise the opposite party that an appeal has been taken from a specific judgment in a particular case." K.S. v. S.H., 2002 UT App 82,¶9, 45 P.3d 527. While it is true that notices of appeal are to be construed liberally; nonetheless, the notice must place the opposing party on notice of the order to be appealed. See id. at ¶¶9-10.

    Because the notice of appeal cited an October 6, 2004 order and did not otherwise describe the order to be appealed, it failed to put the opposing side on notice of the order to be appealed. As a result, the notice of appeal is not sufficient for this court to assume jurisdiction over the issues. See id. at ¶10. Once this court determines 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, the appeal is dismissed for lack of jurisdiction.

______________________________

Pamela T. Greenwood, Judge

______________________________

Norman H. Jackson, Judge

______________________________

William A. Thorne Jr., Judge

1. This is inaccurate because the motion for an extension, while untimely from the Sentence, Judgment, and Commitment, is timely from the order issued August 26, 2004 that modified the August 9, 2004 order. The request for an extension would also be timely from any subsequent order.