State of Utah, v. Jones

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State v. Jones. Filed March 4, 1999 IN THE UTAH COURT OF APPEALS


State of Utah,
Plaintiff and Appellee,


David Thayne Jones,
Defendant and Appellant.

(Not For Official Publication)

Case No. 981852-CA

March 4, 1999 1999 UT App 069


Second District, Ogden Department
The Honorable Stanton M. Taylor

David Thayne Jones, Draper, Appellant Pro Se
Jan Graham and Christine F. Soltis,
Salt Lake City, for Appellee


Before Judges Greenwood, Bench, and Billings.


This matter is before the court on its own motion for summary disposition. We dismiss the appeal for lack of jurisdiction.

Appellant seeks to appeal from a memorandum decision of the trial court dismissing several but not all of his claims made pursuant to a Motion to Correct Illegal Sentence. In its memorandum decision, the trial court specifically reserved three issues for future resolution. Thus, this court lacks jurisdiction to entertain the appeal because the memorandum decision is not a final, appealable order. See Utah R. App. P. 3(a). Utah R. App. P. 3(a) provides that an appeal may be taken from a district court from all final orders and judgments. Absent a final order, the appellate court lacks jurisdiction and must dismiss the appeal. State v. Rawlings, 829 P.2d 150, 153 (Utah Ct. App. 1992).

For a judgment or order to be final, it must "'finally dispose of the subject-matter of the litigation on the merits of the case.'" In re Southern Amer. Ins. Co., 930 P.2d 276, 278 (Utah Ct. App. 1996) (citing Kennedy v. New Era Indus., Inc., 600 P.2d 534, 535-36 (Utah 1979)). A final judgment "'ends the controversy between the parties litigant.'" Kennedy, 600 P.2d at 536 (citations omitted). There is no dispute that when appellant filed his notice of appeal, claims raised in his motion were still pending in the trial court. Because the final judgment rule requires that all claims must be disposed of before judgment is final, the appeal is premature absent a Utah R. Civ. P. 54(b) certification, a Utah R. App. P. 5 petition for permission to file an interlocutory appeal, or a Utah R. Civ. P. 65B petition for extraordinary relief, none of which have been filed in this case. See Tyler v. Department of Human Serv., 874 P.2d 119, 120 (Utah 1994) (per curiam).

Because the appeal is not taken from a final order, we have no alternative but to dismiss the appeal for lack of jurisdiction. This dismissal is without prejudice to the filing of a new, timely notice of appeal after the trial court enters a final order disposing of all the issues raised in appellant's motion.

Pamela T. Greenwood,
Associate Presiding Judge

Russell W. Bench, Judge

Judith M. Billings, Judge