State of Utah v. Norris

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State v. Norris. Filed May 20, 1999 IN THE UTAH COURT OF APPEALS
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State of Utah,
Plaintiff and Appellee,

v.

Richard F. Norris,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990114-CA

F I L E D
May 20, 1999 1999 UT App 170

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Third District, Salt Lake Department
The Honorable Leon A. Dever

Attorneys:
Catherine E. Lilly, Salt Lake City, for Appellant
Jan Graham and Christine E. Soltis, Salt Lake City, for Appellee

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Before Judges Wilkins, Davis, and Jackson.

PER CURIAM:

This court lacks jurisdiction over the present appeal because an order denying a motion to dismiss, whether with or without prejudice, is not final and appealable.

Utah R. App. P. 3(a) allows an appeal to be taken from all final orders and judgments. "In criminal cases, the sentence itself is the final judgment from which an appeal can be taken." State v. Hunsaker, 933 P.2d 415, 416 (Utah Ct. App. 1997) (per curiam) (citing State v. Gerrard, 584 P.2d 885, 886 (Utah 1978)). An order that does not dismiss the information against the defendant is interlocutory, not final. See State v. Quinn, 930 P.2d 267, 268 (Utah Ct. App. 1997). Utah Code Ann. § 77-18a-1(a) (Supp. 1998) allows a defendant in a criminal proceeding an appeal of right from "the final judgment of conviction, whether by verdict or plea." An appeal from an interlocutory order may be taken by a criminal defendant only "when upon petition for review the appellate court decides the appeal would be in the interest of justice." Utah Code Ann. § 77-18a-1(c) (Supp. 1998).

Norris contends Bowles v. State, 652 P.2d 1345 (Utah 1982), which was an appeal from an order of dismissal without prejudice, allows this appeal to proceed. Bowles has no application to this case. The issue presented by Bowles was whether an order of dismissal "without prejudice" was final and appealable because it did not preclude filing of another action. The Utah Supreme Court concluded the "trial court's ruling does go to the legal merits of any cause plaintiffs may frame and hence it is appealable." Id. at 346. Thus, the plaintiffs were effectively precluded from refiling their action until the dismissal was reviewed. The crucial distinction between Bowles and this case is that the present appeal is taken from the denial of a motion to dismiss. The order denying appellant's motion to dismiss leaves the criminal information pending; accordingly, it is interlocutory.

Appellant claims the denial of his motion to dismiss is a determination on the merits of his legal claims. This argument may have been asserted in support of a petition seeking permission to appeal from the interlocutory order; however, the order denying the motion to dismiss is not final and appealable as a matter of right. This court can consider an appeal from an interlocutory order only if a timely petition for permission to appeal has been granted pursuant to Utah R. App. P. 5. See, e.g., State v. Arbon, 909 P.2d 1270 (Utah Ct. App. 1996) (appeal from denial of a motion to dismiss prosecution on Double Jeopardy grounds).

Accordingly, we dismiss the appeal for lack of jurisdiction because it is not taken from a final and appealable order.
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 
 

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James Z. Davis, Judge
 
 
 

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Norman H. Jackson, Judge