State of Utah v. Jean-Jacques

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State v. Jean-Jacques. Filed July 9, 1999 IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Marvin Jean-Jacques,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971655-CA

F I L E D
July 9, 1999
  1999 UT App 223 -----


Fifth District, Cedar City Department
The Honorable J. Philip Eves

Attorneys:
Floyd W. Holm, Cedar City, for Appellant
Jan Graham and Scott Keith Wilson, Salt Lake City, for Appellee

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Before Judges Greenwood, Bench, and Billings.

PER CURIAM:

Appellant Marvin Jean-Jacques appeals his conviction based upon a guilty plea of unlawful possession of a controlled substance, a third degree felony.

Jean-Jacques contends he should have been allowed to withdraw his guilty plea because the State breached the plea agreement. Although Jean-Jacques stated his wish to withdraw his guilty plea at sentencing, the trial court directed him to file a motion to withdraw if that was his intention. Jean-Jacques acknowledges in his brief that he elected not to file a motion. Therefore, the record does not contain a written motion to withdraw or a ruling on such a motion. Nevertheless, Jean-Jacques characterizes this appeal as taken from the denial of a motion to withdraw his guilty plea.

Utah R. Crim. P. 12(a) requires a motion to be made in writing, unless it is made during trial or a hearing or the trial court otherwise directs. The trial court clearly directed Jean-Jacques to file a properly supported written motion if he sought permission to withdraw his guilty plea. Utah Code Ann. § 77-13-6(2)(a) (1995) also requires a demonstration of good cause in support of the request to withdraw a guilty plea. In order to place the issues before the court and preserve them for appeal, Jean-Jacques was required to file a motion.

Even if the oral motion is deemed sufficient, it was not timely under Utah Code Ann. § 77-13-6(2)(b)(1995), which requires a motion to be filed within thirty days of the date of entry of the plea. Jean-Jacques was not advised of this time limitation as required by Utah R. Crim. P. 11(e). Thus, the jurisdictional bar of State v. Price, 837 P.2d 578 (Utah Ct. App. 1992) does not apply. See id. at 583 (holding that if a defendant is advised of the thirty day limitation for filing a motion to withdraw, section 77-13-6(2)(b) is jurisdictional). Failure to advise a defendant of the time limitation is not grounds to set aside the guilty plea, although it may be grounds to seek leave to extend the time for making a motion to withdraw. Utah Code Ann. § 77-13-6(2)(b)(1995). Jean-Jacques did not file a written motion as directed by the trial court and did not seek leave to file an untimely motion.(1)

Accordingly, we affirm the judgment.
 
 
 

_____________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 
 

_____________________________
Russell W. Bench, Judge
 
 
 

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Judith M. Billings, Judge

1. We do not reach the argument that the 30-day time limitation was an unconstitutional statute of repose in this case. First, it has not been adequately briefed. Second, because Jean-Jacques failed to file a motion to withdraw, as the trial court invited him to do, it is not clear that the 30-day time limitation would have been applied by the trial court.