Dickey v. State of Utah

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Jerry Dickey,
Petitioner and Appellant,

v.

State of Utah,
Respondent and Appellee.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 990161-CA

F I L E D
September 10, 1999
  1999 UT App 257 -----

Third District, Salt Lake Department
The Honorable Tyrone E. Medley

Attorneys: Jerry W. Dickey, Draper, Appellant Pro Se
Jan Graham and J. Frederic Voros, Jr., Salt Lake City, for Appellee

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Before Judges Wilkins, Billings, and Jackson.

PER CURIAM:

Appellant appeals from an order of the trial court denying his "Motion to Object to Court Order and Judgment of Post-Conviction Relief" as untimely and beyond the scope of Rule 4-504 of the Rules of Judicial Administration. Contrary to the trial court's assumption, appellant's motion, which was filed within ten days of the entry of the order dismissing the petition, was in substance not a Rule 4-504 motion, but a Utah Rule of Civil Procedure 59 or 52(b) motion.

In his motion and supporting memorandum, appellant objects to the court's order and judgment, challenges the correctness of the court's findings and conclusions, raises additional arguments regarding "exceptional circumstances" excusing his failure to directly appeal his conviction, and seeks a rehearing. "Regardless of how it is captioned, a motion filed within ten days of the entry of judgment that questions the correctness of the court's findings and conclusions is properly treated as a post-judgment motion under either Rules 52(b) or 59(e)." DeBry v. Fidelity Nat'l Title Ins. Co., 828 P.2d 520, 522-23 (Utah Ct. App. 1992). "The substance of a motion, not its caption, is controlling." Id. at 523.

Based on the substance of appellant's motion, the trial court should have treated and disposed of the motion as a Rule 52(b) or Rule 59 motion. Accordingly, we reverse the trial court's December 31, 1998, order denying appellant's "Motion to Object to Court Order and Judgment of Post-Conviction Relief" and remand the case for such further proceedings as now may be proper.(1)
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 

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Norman H. Jackson, Judge

1.In light of this decision, the court's sua sponte motion for summary disposition is withdrawn.  We note that the notice of appeal was timely filed, inasmuch as appellant filed a timely motion for extension of time on February 25, 1999, which motion was granted by the trial court on August 10, 1999.