State of Utah v. Henwood

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Ronald Jerry Henwood,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990670-CA

F I L E D
October 15, 1999
     1999 UT App 298 -----

Third District, Tooele Department
The Honorable Leon A. Dever

Attorneys:
Edwin S. Wall, Salt Lake City, for Appellant
Jan Graham and Laura B. Dupaix, Salt Lake City, for Appellee

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Before Judges Wilkins, Bench, and Billings.

PER CURIAM:

A notice of appeal must "be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from." Utah R. App. P. 4(a). The order Henwood seeks to appeal was entered on April 13, 1999. His notice of appeal was not filed until August 4, 1999, well after the 30 day deadline.

Henwood asks that we treat the May 20, 1999, letter his trial counsel wrote to the trial court as a notice of appeal "and a showing of excusable neglect for the failure to otherwise timely file the required notice." However, we are without authority to do so. The letter was filed more than 30 days after sentencing and, thus, could not be considered a timely notice of appeal; the trial court did not consider the letter to be a notice of appeal; we are bound by the trial court's date stamp on a notice of appeal, which in this instance is August 4, 1999; and we are without authority to extend the 30 day appeal period. See In re M.S., 781 P.2d 1287, 1288 (Utah Ct. App. 1989) (stating that in determining whether a notice of appeal is timely filed and establishes jurisdiction in an appellate court, the appellate court is bound by the filing date on the notice of appeal transmitted to it by the trial court); see also, Utah R. App. P. 2, 4(a).

Because Henwood's notice of appeal was late, we have no alternative but to dismiss his appeal for lack of jurisdiction. Henwood's remedy, if any, is by motion for post-conviction relief. See State v. Johnson, 635 P.2d 36, 38 (Utah 1981).

The appeal is dismissed.
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 

______________________________
Judith M. Billings, Judge