State of Utah, v Kontos

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State of Utah v Kontos, No. 981704-CA Filed February 11, 1999 IN THE UTAH COURT OF APPEALS

----ooOoo---- State of Utah,
Plaintiff and Appellee,


Anthony Nicholas Kontos,
Defendant and Appellant. )

(Not For Official Publication)

Case No. 981704-CA


February 11, 1999 ----- Fifth District, Cedar City Department
The Honorable Robert T. Braithwaite

D. Bruce Oliver, Salt Lake City, for Appellant
Jan Graham and Norman E. Plate, Salt Lake City, for Appellee

----- Before Judges Greenwood, Bench, and Billings.


¶1     This appeal is before the court on a sua sponte motion for summary disposition, and on appellant's cross-motion for summary reversal. We dismiss the appeal for lack of jurisdiction.

¶2     Appellant Anthony Nicholas Kontos appeals from an order denying his motion to dismiss probation revocation proceedings. A defendant may take an appeal from a final judgment of conviction. See Utah Code Ann. § 77-18a-1(1)(a) (Supp. 1998). An order denying a motion to dismiss, which leaves the proceeding pending in the trial court, is not a final judgment appealable as a matter of right. See Utah R. App. P. 3(a). "The final judgment rule, which underlies . . . Utah Rule of Appellate Procedure 3, precludes a party from taking an appeal from any orders or judgments that are not final." A.J. Mackay Co. v. Okland Constr.Co., 817 P.2d 323, 325 (Utah 1991). Appellant did not file a timely petition under Utah R. App. P. 5 seeking permission from this court to appeal from the interlocutory order on the motion to dismiss. See Utah Code Ann. § 77-18a-1(1)(c) (Supp. 1998). Accordingly, this court lacks jurisdiction to consider the merits of this appeal.

¶3     We dismiss the appeal for lack of jurisdiction because it is not taken from a final appealable judgment.

Pamela T. Greenwood, Judge

Russell W. Bench, Judge

Judith M. Billings, Judge