State of Utah v. Gardner

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Robert Leon Gardner,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010378-CA

F I L E D
November 8, 2001 2001 UT App 335 -----

Third District, Salt Lake Department
The Honorable J. Dennis Frederick

Attorneys:
Joan C. Watt and C. Bevan Corry, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee -----

Before Judges Greenwood, Jackson, and Davis.

PER CURIAM:

Appellant Robert Leon Gardner appeals the sentences on his convictions for Shoplifting and Attempted Escape from Official Custody, both class A misdemeanors. This case is before the court on appellant's motion for summary disposition.

Appellant raises the same issues regarding sentencing in absentia that this court previously determined in State v. Wanosik, 2001 UT App 241, 31 P.3d 615. Consequently, appellant is entitled to be resentenced because the trial court made no inquiry to establish if defendant's absence was in fact voluntary. See id. at ¶23.

The State seeks dismissal of the appeal arguing that appellant has failed to demonstrate any harm as a result of his sentencing in absentia. However, because the sentence was imposed in an illegal manner, Wanosik is dispositive of this appeal and requires us to remand for resentencing.

Accordingly, we grant the motion for summary disposition, vacate the sentence, and remand for resentencing in accordance with Wanosik.
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 

______________________________
James Z. Davis, Judge