State of Utah v. Bohne

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Larry G. Bohne,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981526-CA

F I L E D
February 3, 2000
  2000 UT App 017 -----

Fifth District, Cedar City Department
The Honorable Robert T. Braithwaite

Attorneys:
J. Bryan Jackson, Cedar City, for Appellant
Scott M. Burns, Cedar City, for Appellee

-----

Before Judges Bench, Billings, and Wilkins.(1)

PER CURIAM:

Larry G. Bohne appeals his conviction of one count of Contracting without a License. We dismiss the appeal because it is not taken from a final appealable judgment.

Bohne was charged with four counts of Contracting without a License, a class A misdemeanor. The case was tried on stipulated facts at a bench trial on only Count I of the Amended Information. At the conclusion of the trial, the court entered its "Judgment, Sentence, Stay of Execution of Sentence, Order of Probation and Certificate of Probable Cause." The trial court entered a separate "Order Continuing Counts II, III, & IV," which continued proceedings on the remaining counts "until the Utah Court of Appeals renders an opinion as to the Court's determination of guilt as associated in Count I." Bohne filed a notice of appeal from the conviction. Neither Bohne's docketing statement nor his opening brief indicated that additional counts remained pending in the trial court, nor did he attach a copy of the stay order.

"[E]xcept in a narrow category of situations, no order of a trial court is appealable until a final judgment is entered on all issues." Kennecott Corp. v. Utah State Tax Comm'n, 814 P.2d 1099, 1101 (Utah 1991). Any order that resolves fewer than all the claims before the trial court is an interlocutory order. Rule 5 of the Utah Rules of Appellate Procedure allows a party to seek permission from the appropriate appellate court to appeal an interlocutory order. The determination whether to allow an interlocutory appeal is within the sole discretion of the appellate court. See generally A.J. Mackay Co. v. Okland Constr.Co., 817 P.2d 323, 325 (Utah 1991).

In Shaw v. Layton Constr. Co., 854 P.2d 1033, 1034 (Utah Ct. App. 1993), this court dismissed an appeal purportedly taken from a final order that adjudicated the complaint, but held a third-party complaint "in abeyance" pending the outcome of an appeal from the judgment on the complaint. This court concluded that the procedure of holding a claim in abeyance "is not recognized under our rules as a method of vesting appellate jurisdiction over interlocutory orders." Id. at 1035. Similarly, the trial court in this case ordered proceedings on the remaining counts charged in the Amended Information stayed pending the outcome of this appeal from the conviction on Count I. The trial court could not vest appellate jurisdiction over the appeal taken from an interlocutory order by this means, and Bohne did not timely seek permission from this court to appeal from an interlocutory order, pursuant to Rule 5(a) of the Utah Rules of Appellate Procedure. This court is precluded from suspending or modifying the requirements of Rule 5(a). See Utah R. App. P. 2.

We dismiss the appeal for lack of jurisdiction because it is not taken from a final appealable order. Our dismissal is without prejudice to a timely appeal taken following entry of final judgment.
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 

______________________________
Michael J. Wilkins, Judge

1. Justice Wilkins participated in the resolution of this case prior to his swearing-in as a member of the Utah Supreme Court.