State of Utah v. Defoe

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State v. Defoe. Filed December 9, 1999 IN THE UTAH COURT OF APPEALS


State of Utah,
Plaintiff and Appellee,


David Defoe,
Defendant and Appellant.

(Not For Official Publication)

Case No. 990464-CA

December 9, 1999
  1999 UT App 369 -----

Second District, Ogden Department
The Honorable Michael D. Lyon

David Defoe, Draper, Appellant Pro Se
Jan Graham and Scott Keith Wilson, Salt Lake City,for Appellee


Before Judges Wilkins, Billings, and Jackson.


David Defoe appeals from an order denying his "Motion to Correct Illegal Sentence, Arrest of Judgement, and Challenge to Criminal Jurisdiction." We dismiss the appeal for lack of jurisdiction.

The trial court entered its order on April 16, 1999. Defoe's notice of appeal was filed on May 19, 1999. A notice of appeal must generally be filed within thirty days of entry of the judgment or order being appealed. Utah R. App. P. 4(a). However, Rule 4(f) of the Utah Rules of Appellate Procedure provides that "[i]f an inmate confined in an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely filed if it is deposited in the institution's internal mail system on or before the last day for filing." The original notice of appeal and the accompanying certificate of service in this case are each dated May 18, 1999, a day after the expiration of the appeal time. The notice also was not accompanied by proof of timely mailing in the form set forth in Rule 4(f). Accordingly, the notice of appeal was not timely filed.

A court's first inquiry is always to determine whether the court has jurisdiction over the matter before it. See Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989). "When a matter is outside the court's jurisdiction, it retains only the authority to dismiss the action." Id. Based upon the untimely filing of the notice of appeal, we lack jurisdiction to consider the merits of this appeal.

Accordingly, we dismiss the appeal.

Michael J. Wilkins,
Presiding Judge

Judith M. Billings, Judge

Norman H. Jackson, Judge