State v. White

State v. White

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Christena White,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040201-CA
 

F I L E D
(February 10, 2005)
 

2005 UT App 60

 

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Third District, Salt Lake Department

The Honorable Judith S. Atherton

Attorneys: Christena White, Salt Lake City, Appellant Pro Se

Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee

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Before Judges Davis, Jackson, and Orme.

PER CURIAM:

    Appellant White appeals a restitution order issued February 4, 2004, that ordered White to pay $8,460.63 in restitution to the victim of her criminal activity. The original conviction, from which the restitution order issued, was entered on January 27, 2003. Originally, the trial court ordered Adult Probation and Parole to determine the appropriate amount of restitution. Apparently, Adult Probation and Parole was unable to do so and the State eventually requested that the trial court adopt the amount ordered as a civil judgment in an action brought by the victim, or that a restitution hearing be held. The State filed a notice to submit in July 2003. The trial court did not act on the request and the State again requested a hearing in November 2003. A hearing was eventually held on February 4, 2004.

    White has previously appealed her conviction, which was summarily affirmed by this court, See State v. White, 2004 UT App 177. White filed a petition for certiorari in the Utah Supreme Court which was denied. As previously mentioned, the victim in the criminal case also filed a civil suit against White based on the criminal activity. A civil judgment was entered in the amount of $11,272.61. The trial court in the criminal case declined to impose that figure as restitution because the amount included attorney fees and other fees that the trial court concluded were not appropriate as criminal restitution.

    In this appeal of the restitution order, White makes several arguments to overturn her conviction -- arguments that have been addressed by this court in the appeal of her conviction. White argues that her conviction should be vacated because of "federal exemptions." This argument involves certain sections of the Utah Uniform Securities Act. White also contends that she received ineffective assistance of counsel at trial. The State correctly argues that these claims relating to her conviction are barred by res judicata, specifically, the claim preclusion aspect of res judicata.

    Claim preclusion has three requirements that, if met, bar the claim. First, both cases must involve the same parties or their privies. Second, the claim alleged to be barred must have been presented in the first suit or be one that could and should have been raised in the first suit. Third, the first suit must have resulted in a final judgment on the merits. See Snyder v. Murray City Corp., 2003 UT 13,¶34, 73 P.3d 325. All three requirements are met with respect to White's claims relating to her conviction.

    White also argues that she was prejudiced by the delay of over a year in holding a restitution hearing. She argues that the delay resulted in her being harassed by the victim while the restitution issue was pending. We note that White herself repeatedly requested that the trial court in the criminal case refrain from determining the amount of restitution until resolution of her appeal or appeals. Both in her pro se pleading entitled "Defendant's Notice to Request a Hearing to Dismiss Restitution and Request a Stalking Order" and at the restitution hearing, she specifically made such a request. Now she argues that the trial court's delay in determining the amount of restitution has prejudiced her. White's requested relief is that a statute be enacted that requires that restitution be determined within three months of sentencing.

    This court does not have authority to enact legislation. Moreover, when a claim is conceded below, the issue will not be considered on appeal. See ONG Int'l, Inc. v. 11th Ave. Corp., 850 P.2d 447, 455 (Utah 1993). By actually arguing below for delay, White waived the opportunity to complain on appeal about the delay.

    White mentions the trial court's denial of her application for a certificate of probable cause in her appeal. However, any issue related to that ruling has been rendered moot by this court's decision on White's conviction, issued approximately three and one half months after the trial court's denial of her application.

    The trial court's restitution order is affirmed.

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James Z. Davis, Judge

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Norman H. Jackson, Judge

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Gregory K. Orme, Judge