Tooele City v. Peterson

----ooOoo----

Tooele City,
Plaintiff and Appellee,

v.

Byron Clyde Peterson,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000396-CA

F I L E D
March 1, 2001 2001 UT App 61 -----

Third District, Tooele Department
The Honorable Anthony Quinn

Attorneys:
Steven Lee Payton, Salt Lake City, for Appellant -----

Before Judges Jackson, Bench, and Davis.

PER CURIAM:

This case is before the court on a sua sponte motion for summary dismissal and on appellant's motion for summary reversal.

This case originated in the Tooele Valley Precinct Justice Court. Appellant Byron Peterson appeals the decision of the district court following a trial de novo. Utah Code Ann. § 78-5-120 (Supp. 2000) states, in part, that "[t]he judgment after trial de novo may not be appealed unless the court rules on the constitutionality of a statute or ordinance." Utah R. Crim. P. 4(a). "By enacting . . . section 78-5-120 . . . the Utah Legislature . . . specifically and intentionally limited the issues that may be appealed from a district court's judgment." State v. Hinson, 966 P.2d 273, 276 (Utah Ct. App. 1998). Accordingly, "absent an issue regarding the constitutionality of a statute or ordinance, the decision of the district court is final and this court has no jurisdiction to hear an appeal thereof." Id. at 277.

The district court did not rule on the constitutionality of a statute or ordinance. Peterson argued in district court that Utah Rule of Criminal Procedure 4(a) required Tooele City to proceed by an information "sworn to by a person having reason to believe the offense has been committed." See also Utah R. Crim. P. 5(a) (stating "all criminal prosecutions whether for felony, misdemeanor or infraction shall be commenced by the filing of an information or the return of an indictment"). Peterson attempted to link the rules to a statute by reference to Utah Code Ann. § 77-1-2, which provides that criminal prosecutions shall be conducted under statutes in that title, the Rules of Criminal Procedure, and further rules adopted by the Utah Supreme Court. However, Peterson sought enforcement of the procedural rules, not invalidation of the statute. Thus, the district court's decision on the motion for new trial does not constitute a ruling on the constitutionality of a statute.

Peterson also argues that appellate jurisdiction exists notwithstanding Utah Code Ann. § 78-5-120 because "[i]t is not necessary for the appellate court to reach constitutional issues." This argument is without merit. There is no basis for further appeal in the absence of a ruling on the constitutionality of a statute. See Utah Code Ann. § 78-5-120 (Supp. 2000). Finally, Peterson seeks "leave" to file a petition for extraordinary relief. We decline to consider this appeal as a petition for extraordinary relief.(1)

We dismiss the appeal for lack of jurisdiction. Accordingly, we do not consider the motion for summary reversal.
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
James Z. Davis, Judge

1. This decision should not be construed as either authorizing or precluding filing of a petition seeking post-conviction relief under the Utah Post-Conviction Remedies Act, Utah Code Ann. § 78-35a-101 to -110 (1996).