State of Utah v. Smith

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Dennis C. Smith,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990583-CA

F I L E D
June 14, 2001 2001 UT App 191 -----

Third District, Murray Department
The Honorable Joseph C. Fratto, Jr.

Attorneys:
Edward R. Montgomery, Salt Lake City, for Appellant
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee

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Before Judges Greenwood, Billings, and Thorne.

BILLINGS, Judge:

Defendant Dennis Smith was convicted by a jury of theft, a second degree felony, and theft, a third degree felony, in violation of Utah Code Ann. §§ 76-6-404 and 76-6-412 (1999), and attempted theft, a class A misdemeanor, in violation of Utah Code Ann. §§ 76-4-101, 76-6-404, and 76-6-412 (1999). Defendant appeals the third degree felony theft conviction and the trial court's restitution order. We affirm.

Defendant first argues the State did not offer sufficient evidence to prove that the boxes Defendant stole contained videotapes valued at or above $1,000, the minimum value required to support third degree felony theft. See Utah Code Ann. § 76-6-412(1)(b)(i) (1999). "[A]s a general rule, a defendant must raise the sufficiency of the evidence [below] by proper motion or objection to preserve the issue for appeal." State v. Holgate, 2000 UT 74,¶16, 10 P.3d 346. "[T]he preservation rule applies to every claim . . . unless a defendant can demonstrate that 'exceptional circumstances' exist or 'plain error' occurred." Id. at ¶11 (citations omitted). To establish plain error, a defendant must not only prove "that the evidence was insufficient to support [the] conviction[,]" but also "that the insufficiency was so obvious and fundamental that the trial court erred in submitting the case to the jury." Id. at ¶17. If a defendant fails to argue exceptional circumstances or plain error justifies review on appeal, then "we [will] decline to consider [the issue] on appeal." State v. Pledger, 896 P.2d 1226, 1229 n.5 (Utah 1995). But see State v. Rudolph, 2000 UT App 155,¶24, 3 P.3d 192 (declining to require defendant to preserve sufficiency claim by making an objection or motion below).

Defendant did not raise sufficiency of the evidence in regard to the third degree felony theft conviction below. Therefore, Defendant did not preserve the issue for appeal. Defendant also does not argue exceptional circumstances or plain error justify our review on appeal. Therefore, we decline to address Defendant's sufficiency of the evidence claim in regard to the third degree felony theft conviction and dismiss this part of Defendant's appeal.

Defendant next argues the State failed to offer sufficient evidence to support the trial court's restitution order. The record does not contain a final restitution order, only what appears to be an unsigned "judgment form." Appeals may be taken from final judgments and orders. See Utah R. App. P. 3(a); Kurth v. Wiarda, 1999 UT App 153,¶5, 981 P.2d 417. The Utah Supreme Court has consistently held that unsigned minute entries are not final judgments and orders. See, e.g., State v. Jimenez, 938 P.2d 264, 265 (Utah 1997); Ron Shepard Ins. v. Shields, 882 P.2d 650, 653 (Utah 1994). Without a signed, final order we lack jurisdiction and therefore must also dismiss this part of Defendant's appeal. See Kurth, 1999 UT App 153 at ¶5.
 
 
 

______________________________
Judith M. Billings, Judge -----

WE CONCUR:
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 

______________________________
William A. Thorne, Jr., Judge