State of Utah v. Quinn

State of Utah, Plaintiff and Petitioner,

vs.

Dominic Quinn, Defendant and Respondent.

Case No. 960687-CA

COURT OF APPEALS OF UTAH

930 P.2d 267, 305 Utah Adv. Rep. 17

December 12, 1996, FILED

First District, Logan Department. The Honorable Clint S. Judkins.

Petition for Rehearing Denied January 30, 1997, Reported at: 1997 Utah App. LEXIS 9.

COUNSEL

Scott L. Wyatt and Randon H. Draper, Logan, for Petitioner.

David M. Perry, Logan, for Respondent.

JUDGES

Before Gregory K. Orme, Presiding Judge, Norman H. Jackson, Judge, Michael J. Wilkins, Judge

OPINION

PER CURIAM:

The State seeks to appeal the magistrate's interlocutory order denying its request to enhance Quinn's present DUI charge to a third degree felony. However, the State's ability to take an appeal in a criminal case is limited. Unless otherwise allowed by statute, the State may appeal only from:

(a) a final judgment of dismissal;

(b) an order arresting judgment;

(c) an order terminating the prosecution because of a finding of double jeopardy or denial of a speedy trial;

(d) a judgment of the court holding a statute or any part of it invalid;

(e) an order of the court granting a pretrial motion to suppress evidence when, upon a petition for review, the appellate court decides that the appeal would be in the interest of justice; or

(f) an order of the court granting a motion to withdraw a plea of guilty or no contest.

Utah R. Crim. P. 26(3).

Because the magistrate's decision does not fit within any of these categories, the State is not eligible to take an interlocutory appeal. This conclusion is further supported by State v. Humphrey, 823 P.2d 464 (Utah 1991). In that case, the supreme court held that this court's jurisdictional statute, Utah Code Ann. 78-2a-3(2) (1991), does "not permit direct interlocutory appeal of magistrates' bindover orders." Id. at 467.

Accordingly, the State's petition for permission to file an interlocutory appeal is denied.

Gregory K. Orme, Presiding Judge

Norman H. Jackson, Judge

Michael J. Wilkins, Judge

DISPOSITION

The State's petition for permission to file an interlocutory appeal is denied.