Smith v. State

Smith v. State Case No. 20010756-CA

IN THE UTAH COURT OF APPEALS

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Melvin E. Smith,
Petitioner and Appellant,

v.

State of Utah,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010756-CA

F I L E D
(December 6, 2001)

2001 UT App 382

 

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Fourth District, Provo Department
The Honorable Guy R. Burningham

Attorneys: 
Melvin E. Smith, Draper, Appellant Pro Se

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Before Judges Greenwood, Jackson, and Davis.

PER CURIAM:

Appellant Melvin Smith appeals the denial of his petition for post-conviction relief as frivolous on its face. This case is before the court on a sua sponte motion for summary disposition.

In 1994, Smith was convicted of Aggravated Burglary and Possession of a Dangerous Weapon. This court affirmed the conviction in a decision issued December 7, 1995. See State v. Smith, No. 940580-CA, slip op. (Utah Ct. App. Dec. 7, 1995). In 1997, Smith filed a Petition for Relief under the Post-Conviction Remedies Act. On April 1, 1997, the district court dismissed this petition as untimely because it was not filed within one year of the accrual of the claims, as required by Utah Code Ann. § 78-35a-107 (1996). Smith appealed. This court dismissed Smith's appeal because the notice of appeal was untimely and we lacked jurisdiction to consider the merits of the appeal.

Smith filed a second petition seeking post-conviction relief in January of 2001. The district court dismissed the petition as frivolous on its face, noting that the original petition asserting the claims had been dismissed as untimely and that decision was not reversed on appeal.

The January 2001 petition was an attempt to reassert claims that either were, or could have been, raised and considered on direct appeal or in the original petition for post-conviction relief. Smith cannot continue to reassert these claims in successive petitions. His conviction was affirmed on direct appeal, and the appeal from the decision on his original petition was dismissed as untimely. It is apparent from the face of the petition filed in 2001 that the claims raised therein were either raised or could have been raised in the direct appeal or in the original petition for post-conviction relief. Accordingly, Smith is precluded from filing successive petitions challenging his underlying 1994 conviction. See Utah Code Ann. § 78-35a-107 (1996). The district court did not err in dismissing the petition as frivolous on its face.

We affirm the decision of the district court.

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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