Moab City v. Wolfe

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Moab City,
Plaintiff and Appellee,

v.

John D. Wolfe,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981715-CA

F I L E D
July 1, 1999

1999 UT App 215 -----

Seventh District, Moab Department
The Honorable Lyle R. Anderson

Attorneys:
John D. Wolfe, Moab, Appellant Pro Se
William L. Benge, Moab, for Appellee

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Before Judges Wilkins, Davis, and Orme.

PER CURIAM:

Appellant John D. Wolfe appeals his conviction of reckless driving, a class B misdemeanor. Wolfe appealed the judgment of the Grand County Justice Court and was again convicted after a trial de novo in district court. This case is before the court on a sua sponte motion to dismiss the appeal on the basis that appellant has no further right of appeal from the trial de novo of the district court.

Any person not satisfied with the justice court's judgment may obtain a trial de novo in district court. Utah Code Ann.

§ 78-5-120 (Supp. 1998). However, "[t]he judgment after trial de novo may not be appealed unless the court rules on the constitutionality of a statute or ordinance." Id. Wolfe did not raise a challenge to a statute or ordinance in the justice court or district court. Because the district court did not rule on the constitutionality of a statute or ordinance, the judgment following the trial de novo is not appealable. Id.; see alsoCity of Kanab v. Gusky, 965 P.2d 1065, 1066-68 (Utah Ct. App. 1998).

We decline to consider appellant's contention that the statute limiting his right of appeal to a trial de novo in district court is a denial of his right to a fair trial and appeal because the argument is not supported by adequate analysis. Similar challenges to the appellate scheme have been considered and rejected by this court and the Utah Supreme Court. See generally City of Monticello v. Christensen, 769 P.2d 853, 854 (Utah Ct. App. 1989) (per curiam), affirmed, 788 P.2d 513 (Utah), cert. denied, 498 U.S. 841, 111 S. Ct. 120 (1990).

This court lacks jurisdiction over the appeal. When a matter is outside the court's jurisdiction, the court retains only the jurisdiction to dismiss the appeal. See Varian-Eimac,Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989). Accordingly, we dismiss the appeal.
 
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 
 

______________________________
James Z. Davis, Judge
 
 
 

______________________________
Gregory K. Orme, Judge