State of Utah v. Taele

State of Utah,
Plaintiff and Appellee,

v.

Francis Taele,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981618-CA

F I L E D
(February 19, 1999)
  1999 UT App 043

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Fourth District, Provo Department
The Honorable Guy Burningham

Attorneys:
Thomas H. Means, Provo, for Appellant
Vernon F. Romney, Provo, for Appellee

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Before Judges Greenwood, Bench, and Billings.

PER CURIAM:

Appellant was sentenced on August 12, 1998. The Sentence, Judgment, Commitment document is dated August 12, 1998, in the caption and the trial court's docket reflects that same date. The judgment is not separately date-stamped. If August 12th were the date upon which we must rely, appellant's September 15, 1998, notice of appeal would be late. However, the date written next to the judge's signature is August 17, 1998. Since it appears that the order was actually signed on August 17th and could not have been "entered" before that date we conclude that the September 15, 1998, notice of appeal is timely and that we have jurisdiction to resolve the appeal.(1)

It is within the discretion of the trial court to grant or to deny motions for continuance. See Utah R. Civ. P. 40(b); Christenson v. Jewkes, 761 P.2d 1375, 1377 (Utah 1988) (stating that "[t]rial courts have substantial discretion in deciding whether to grant continuances"); State v. Humphreys, 707 P.2d 109, 109 (Utah 1985) (stating that "[i]t is well established in Utah, as elsewhere, that the granting of a continuance is at the discretion of the trial judge, whose discretion will not be reversed by [an appellate court] absent an abuse of discretion"); Miller Pontiac Inc. v. Osborne, 622 P.2d 800, 803 (Utah 1981) (stating that the granting of a continuance rests in the sound discretion of the trial court and no abuse of discretion was found in the denial of the request for a continuance). Appellant had already sought and received a continuance before seeking the subject continuance. The second request was made shortly before trial and lacked specific, compelling information showing why a second continuance was warranted. Absent such information, there is no basis for us to second-guess the trial court's decision not to continue the trial.

There was sufficient evidence to support appellant's conviction for criminal mischief. According to Utah Code Ann. § 76-6-106(1)(c) (1998), a person is guilty of criminal mischief if he "intentionally damages, defaces, or destroys the property of another." The State put on evidence to prove that the phone was acquired during Mr. and Ms. Taele's marriage, that the phone had remained with Ms. Taele since the marriage, that the phone had been in Ms. Taele's possession approximately two years when Mr. Taele came into her home, and that Mr. Taele damaged the phone. Thus, there was sufficient evidence to support Mr. Taele's conviction for criminal mischief.

Accordingly, the trial court is affirmed.
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Judith M. Billings, Judge

1. The problem created here could have been avoided if the trial court date-stamped its own order rather than relying upon the date in the caption of the court-generated document.