State of Utah v. Medsker

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Todd Michael Medsker,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990266-CA

F I L E D
November 2, 2000 2000 UT App 305 -----

Second District, Morgan Department
The Honorable Stanton M. Taylor

Attorneys:
Jonathan B. Pace, Ogden, for Appellant
Jan Graham and Thomas B. Brunker, Salt Lake City, for Appellee -----

Before Judges Greenwood, Billings, and Orme.

PER CURIAM:

Appellant Todd Michael Medsker appeals his conviction for possession of a controlled substance, a third degree felony. This case is before the court on the State's motion for summary dismissal and alternative motion to stay the appeal. The motion raises a jurisdictional issue and is properly before us at this time.

The trial court entered final judgment on February 11, 1999. The last day for filing a notice of appeal was March 15, 1999. See Utah R. App. P. 4(a). The notice of appeal was filed in the trial court on March 19, 1999. On December 30, 1999, Medsker filed a motion seeking an extension of the time for filing a notice of appeal to March 19, 1999 in order to cure the jurisdictional defect. The trial court granted the motion, although it granted an extension to March 19, 2000.

Rule 4(e) of the Utah Rules of Appellate Procedure requires a motion to extend the time for an appeal to be filed not later than thirty days after expiration of the appeal time under Rule 4(a). The motion was not timely under Rule 4(e); therefore, it was not properly before the trial court. Accordingly, the trial court lacked authority under Rule 4(e) to grant the extension.

Medsker argues that his "Affidavit in Support of Motion for Assignment of Counsel and Granting Leave to Appeal as a Poor Person," faxed to the court within the time for appeal, should be deemed to be a timely notice of appeal. We disagree. First, the rules do not presently allow a notice of appeal to be filed by fax. Second, the affidavit cannot be construed as a notice of appeal because the substance of the affidavit was a request for appointment of counsel in anticipation of a future appeal. Finally, Medsker filed a formal notice of appeal, albeit an untimely one, and he did not intend, or rely upon, the affidavit as his notice of appeal.

The notice of appeal was untimely, this court lacks jurisdiction over the appeal, and the appeal is, accordingly, dismissed. Our dismissal makes it unnecessary to rule on the State's alternative motion for stay.
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 
 

______________________________
Gregory K. Orme, Judge