State of Utah v. Ward

MEMORANDUM DECISION
(Not For Official Publication)

State of Utah,
Plaintiff and Appellee,

v.

Michael J. Ward,
Defendant and Appellant.

Case No. 981406-CA

F I L E D
(November 19, 1998)
-----

Second District, Ogden Department
The Honorable Michael J. Glasmann

Attorneys:
Michael J. Ward, Draper, Appellant Pro Se
Jan Graham and Norman E. Plate, Salt Lake City, for Appellee

----- Before Judges Billings, Jackson, and Orme.

PER CURIAM:

Appellant Michael J. Ward appeals from the denial of a motion to correct illegal sentence. This case is before the court on Ward's motion for summary reversal and on a sua sponte motion for summary disposition on the basis that the court lacks jurisdiction because the notice of appeal was not timely filed, or in the alternative, on the basis that the appeal presents no substantial issue meriting further consideration by this court. We dismiss the appeal for lack of jurisdiction.

The trial court denied Ward's motion under Utah R. Crim. P. 22(e) in a ruling entered on May 4, 1998. Ward filed a motion for reconsideration on May 18, 1998. He filed a supplemental motion ten days later, purportedly based on newly discovered evidence on the Arizona offense that was the basis for the imposition of a minimum mandatory sentence under Utah law.

Following the denial of the motion for reconsideration on July 17, 1998, Ward initiated this appeal.

Rule 4(a) of the Utah Rules of Appellate Procedure requires the filing of a notice of appeal within thirty days after the date of entry of the judgment or order being appealed. The time for appeal may be extended by filing any of the post-judgment motions enumerated in Utah R. App. P. 4(b). That rule provides, in relevant part, that "if a timely motion under the Utah Rules of Criminal Procedure is filed in the trial court by any party (1) under Rule 24 for a new trial; or (2) under Rule 26 for an order, after judgment, affecting the substantial rights of a defendant, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion." Ward contends his motion for reconsideration is "included in the unlimited scope of the phrase 'any other motions.'" We disagree. Rule 4(b) refers to motions under Rule 24 or 26 of the Utah Rules of Criminal Procedure, neither of which was invoked as the basis for the motion to reconsider.

It is well established that a motion to reconsider the final judgment of a district court "has never been recognized as a proper motion in this state." Wisden v. Bangerter, 893 P.2d 1057, 1058 (Utah 1995)(citations omitted). However, a motion to reconsider that is the functional equivalent of another type of motion may be treated as such. See Watkiss & Campbell v. Foa & Son, 808 P.2d 1061, 1063-65 (Utah 1991). The motion to reconsider in this case simply reasserted the same arguments raised in the initial motion to correct illegal sentence, and we decline to consider it as the functional equivalent of a motion that would toll the time for appeal. The motion was also not filed within the time for filing a motion for new trial under Utah R. Crim. P. 24.(1) Because the motion to reconsider did not toll the time for initiating an appeal and Ward did not file a notice of appeal within thirty days of the order being appealed, this court lacks jurisdiction to consider this appeal.

Accordingly, we dismiss the appeal for lack of jurisdiction.
 

______________________________
Judith M. Billings, Judge
 

______________________________
Norman H. Jackson, Judge
 

______________________________
Gregory K. Orme, Judge

1. On May 28, 1998, Ward filed a supplemental motion to reconsider purportedly based upon newly discovered evidence; however, the motion was filed beyond the time for filing a motion for new trial.