State of Utah v. Buist

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State v. Buist. Filed April 22, 1998 IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

David L. Buist,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990158-CA

F I L E D
April 22, 1998
  1999 UT App 131 -----


First District, Logan Department
The Honorable Clint S. Judkins

Attorneys:
David L. Buist, Draper, Appellant Pro Se
Jan Graham and Christine F. Soltis, Salt Lake City, for Appellee

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Before Judges Greenwood, Davis, and Jackson.

PER CURIAM:

Buist appeals the trial court's order refusing to extend the 30 day time period in which to file a motion to withdraw his plea. We affirm.

Buist pleaded guilty on December 23, 1993. He did not move to extend the 30 day period in which to withdraw his plea until June 10, 1998, nearly five years later. In his motion, Buist gave no reason as to why he failed to seek an extension sooner except to contend that he was unaware of the 30 day time period in which to withdraw a plea. See Utah Code Ann. § 77-13-6(2) (1995) (stating that a "request to withdraw a plea of guilty or no contest is made by motion and shall be made within 30 days after the entry of the plea"); see also, Utah R. Crim. P. 11(f) (stating that "[f]ailure to advise the defendant of the time limits for filing any motion to withdraw a plea of guilty, no contest or guilty and mentally ill is not a ground for setting the plea aside, but may be ground for extending the time to make a motion under Section 77-13-6"). The trial court rejected Buist's request concluding that the "record reflects that at all critical stages of the case the Defendant was represented by able defense counsel and there be no showing that his rights were not properly safeguarded." Not only was Buist represented at all critical stages, he had ample opportunity to ask the trial court to extend the 30 day time limit long before he did. Buist made many appearances before the trial court during a several year period and never once sought to extend the 30 day period to withdraw his plea. To the contrary, he benefitted from his plea. He pleaded guilty to one count, the other three counts were dismissed, and he was placed on probation rather than being sent to prison. It was only after Buist violated his probation for the third time that the trial court revoked probation and sent him to prison and it was only after Buist had been sent to prison that he sought to extend the 30 day time limit. Accordingly, we conclude that the trial court did not abuse its discretion in refusing to extend the 30 day time limit.

We need not consider Buist's claim that the 30 day time limit is unconstitutional because he failed to raise that issue with the trial court. See State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994) (stating that issues raised for the first time on appeal, including constitutional questions, will not be considered by the appellate court).

The trial court is affirmed.
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 
 

______________________________
James Z. Davis, Judge
 
 
 

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Norman H. Jackson, Judge