State of Utah v. Leatherbury

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State of Utah v. Leatherbury, Case No. 990873-CA, Filed April 5, 2001 IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellant,

v.

Charles K. Leatherbury,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990873-CA

F I L E D
April 5, 2001 2001 UT App 113 -----

Third District, Sandy Department
The Honorable Matthew B. Durrant

Attorneys:
Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellant
Joan C. Watt and Daniel M. Torrence, Salt Lake City, for Appellee

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Before Judges Greenwood, Jackson, and Davis.

PER CURIAM:

The State appeals the trial court's order dismissing charges against defendant. The court dismissed the case on the ground that the State did not bring the charges to trial within 120 days of the date defendant requested disposition of the charges, as required by Utah Code Ann. § 77-29-1 (1999). The court held that the charges were pending as of the date on which the prosecutor approved the information for presentment and filing, even though the information was not filed until nearly two months later.

Defendant argues that we lack jurisdiction because the State's notice of appeal was filed more than 30 days after the trial court's minute entry dismissing the case. We find that the minute entry was not a final order for purposes of appeal. Although a signed minute entry may constitute a trial court's final order in some cases, the minute entry in question here directed counsel to prepare findings and conclusions. "On the basis of this language, as well as the fact that a final order was subsequently entered, 'it seems obvious that neither the parties nor the court . . . regarded it [as a final judgment], otherwise there would have been no purpose in entering the final [order].'" Swenson Assocs. Architects, P.C. v. State ex rel. Div. of Facilities Constr., 889 P.2d 415, 417 (Utah 1994)(quoting Utah State Bldg. Bd. v. Walsh Plumbing Co., 16 Utah 2d 249, 254; 399 P.2d 141, 145 (1965)). The State's notice of appeal was filed within 30 days of the trial court's order dismissing the case and was therefore timely. See Utah R. App. P. 4(a).

This case is controlled by our recent decision in State v. Lindsay, 2000 UT App 378, 18 P.3d 504. In that case, we held that charges are not pending until an information is filed. Id. at ¶12. An incarcerated person seeking the disposition of charges is entitled to request disposition only after the information is filed. Id. at ¶15. Here, as in Lindsay, defendant filed his request for disposition of charges before the information was filed. Thus, his request had no legal effect.

Accordingly, we reverse the trial court's order of dismissal and remand the case for further proceedings.
 
 
 

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Pamela T. Greenwood,
Presiding Judge
 
 

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Norman H. Jackson,
Associate Presiding Judge
 
 

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James Z. Davis, Judge