State of Utah v. Herrera

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Daniel Herrera,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981716-CA

F I L E D
April 27, 2000
  2000 UT App 112 -----

First District, Brigham City Department
The Honorable Clint S. Judkins

Attorneys:
Richard M. Gallegos, Ogden, for Appellant
Jan Graham and Karen Klucznik, Salt Lake City, for Appellee

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Before Judges Bench, Billings, and Davis.

PER CURIAM:

Daniel Herrera appeals from his conviction of Possession of a Controlled Substance, a Third Degree Felony. This appeal is before the court on the State's motion to dismiss.

The State seeks dismissal of the appeal based upon Herrera's escape from custody and his fugitive status. The Utah Supreme Court adopted the rule "that one who escapes places himself beyond the reach of the judicial system and any ruling cannot be enforced against him; therefore, he should not be allowed to pursue an appeal while out of custody." State v. Tuttle, 713 P.2d 703, 704 (Utah 1985) (citing Hardy v. Morris, 636 P.2d 473, 474 (Utah 1981) (per curiam)). The supreme court reaffirmed "the settled rule of Hardy v. Morris" in Tuttle and further held that "a criminal appeal dismissed after escape may be reinstated [after defendant is returned to custody] unless the State can show that it has been prejudiced by the defendant's absence and the consequent lapse of time." 713 P.2d at 705.

Based upon Herrera's fugitive status, which is not disputed by his appellate counsel, we dismiss the appeal.
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 

______________________________
James Z. Davis, Judge