State of Utah v. Candelaria

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State of Utah,
Plaintiff and Appellee,

v.

Bernabe S. Candelaria,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010475-CA

F I L E D
September 7, 2001
2001 UT App 264
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Second District, Ogden Department
The Honorable Pamela G. Heffernan

Attorneys:
Maurice Richards, Ogden, for Appellant
Mark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee

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Before Judges Bench, Orme, and Thorne.

PER CURIAM:

Appellant Bernabe Candelaria was charged in Second District Court Case No. 001902764 with one count of Rape, a first degree felony, and one count of Forcible Sexual Abuse, a second degree felony. The case was tried before a jury, which returned guilty verdicts for Forcible Sexual Abuse and for Unlawful Sexual Activity with a Minor, a third degree felony, which was a lesser included offense of the original Rape charge. The convictions resulted solely from proceedings under Case No. 001902764, which was not consolidated with any other case for trial. At sentencing on the two sexual offenses in Case No. 001902764, the district court ordered the sentences on those convictions to run concurrently to each other, but "consecutive to sentences imposed on cases 001904680, 011900065 and 011900293."

Appellant's counsel on appeal filed a single notice of appeal, purportedly taken from convictions in Case Nos. 001902764 and 001904680. The appeal in Case No. 001902764 was assigned No. 20010476-CA and correlates with the convictions for Forcible Sexual Abuse and Unlawful Sexual Activity with a Minor. The appeal in Case No. 001904680 was assigned No. 20010475-CA and correlates only with a conviction for Damaging a Jail, which resulted from an unconditional guilty plea. Appellant filed identical docketing statements in each appeal, raising issues related solely to the sexual offenses. This court issued a sua sponte motion suggesting summary dismissal of the jail damage appeal (Case No. 20010475-CA) because the docketing statement raises no issues relevant to the conviction for Damaging a Jail.

In response to this court's sua sponte motion, appellant concedes that he intends to appeal only the convictions for Forcible Sexual Abuse and Unlawful Sexual Activity with a Minor and does not intend to appeal his conviction for Damaging a Jail. Case No. 20010476-CA includes both convictions appellant seeks to appeal. Case No. 20010475 includes only appellant's conviction for Damaging a Jail, which he concedes that he does not wish to appeal. Nonetheless, appellant's counsel opposes dismissal of Case No. 20010475-CA and seeks consolidation of the pending appeals. This opposition is based upon counsel's continuing confusion as to case numbers.(1) Under the circumstances, it is unnecessary and inappropriate to consider the motion to consolidate.

We deny the motion to consolidate and dismiss the appeal in Case No. 20010475-CA. This decision shall have no effect on the pending appeal in Case No. 20010476-CA, which encompasses the convictions of Forcible Sexual Abuse and Unlawful Sexual Activity with a Minor.
 

______________________________
Russell W. Bench, Judge
 

______________________________
Gregory K. Orme, Judge
 

______________________________
William A. Thorne, Jr., Judge

1. Contrary to counsel's assertion, the confusion does not result from this court's assignment of separate case numbers on appeal, but rather from counsel's use of an inaccurate case number on one of the notices of appeal (001904680), which is unrelated to the convictions he seeks to appeal.