Salt Lake City v. Guffey

----ooOoo----

Salt Lake City,
Plaintiff and Appellee,

v.

Carrie Lynn Guffey,
Defendant and Appellant.

MEMORANDUM DECISION
(Not for Official Publication)

Case No. 20000453-CA

F I L E D
January 19, 2001 2001 UT App 17  -----

Third District, Salt Lake Department
The Honorable Sheila K. McCleve

Attorneys:
Preston S. Howell, Sandy, for Appellant
Simarjit S. Gill, Salt Lake City, for Appellee

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Before Judges Greenwood, Orme, and Thorne.

PER CURIAM:

The city moves for summary disposition under Utah Rule of Appellate Procedure 10(a)(1), arguing that defendant's notice of appeal was untimely filed. We agree.

At the conclusion of trial, defendant was found guilty of three offenses. Defendant subsequently filed a motion to arrest judgment. The trial court imposed sentence on April 21, 2000. At the same time, the trial court deferred consideration of the motion and scheduled it for a hearing on May 1. After the hearing, the trial court announced that it would deny the motion. On May 25, defendant filed a notice of appeal from both the judgment of conviction and the bench ruling. The trial court entered its findings, conclusions, and order denying the motion on June 7. The following day, defendant filed an objection taking issue with several of the findings and conclusions. The trial court has not ruled on the objection.

While defendant's notice of appeal was untimely as to her conviction because it was not filed within 30 days of the entry of the conviction as required by with Utah Rule of Appellate Procedure 4(a), the notice was timely as to the trial court's order denying defendant's motion for arrest of judgment. Under rule 4(c), "a notice of appeal filed after the announcement of a decision, judgment, or order but before the entry of the judgment or order of the trial court shall be treated as filed after such entry and on the day thereof." However, the day after the court entered its order denying the motion, defendant filed an objection to the court's findings and conclusions. Though not captioned as such, the objection was in substance a post-judgment motion to amend the judgment. "[A] motion filed within ten days of the entry of judgment that questions the correctness of the court's findings and conclusions is properly treated as a post-judgment motion under either Rules 52(b) or 59(e).'" DeBry v. Fidelity National Title Insurance Co., 828 P.2d 520, 522-23 (Utah Ct. App. 1992)). Under Utah Rule of Appellate Procedure 4(b), the objection to the trial court's order suspends the running of the time for appeal until the trial court rules on the motion. See also Regan v. Blount, 1999 UT App 154,¶4, 978 P.2d 1051. Since the trial court has not ruled on the objection, the time for appeal has not begun.

Accordingly, it is hereby ordered that the appeal is dismissed without prejudice. Defendant may file a new notice of appeal within 30 days after the trial court enters its order ruling on the objection.
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 
 

______________________________
Gregory K. Orme, Judge
 
 
 
 

______________________________
William A. Thorne, Jr., Judge