Suniville, Jr. v. Smith

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Harry F. Suniville, Jr.,
Petitioner and Appellant,

v.

James Smith, Warden,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010481-CA

F I L E D
September 13, 2001 2001 UT App 270 -----

Third District, Salt Lake Department
The Honorable Leon A. Dever

Attorneys:
Harry F. Suniville, Jr., Gunnison, Appellant Pro Se

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Before Judges Jackson, Bench, and Thorne.

PER CURIAM:

Appellant Harry F. Suniville appeals an order denying his Application to Proceed in Forma Pauperis on a petition for post-conviction relief. This case is before the court on a sua sponte motion for summary dismissal because the appeal is not taken from a final appealable order.

Suniville filed a "Petition for Relief Under the Post Conviction Remedies Act." He also filed an "Application to Proceed in Forma Pauperis" after the judge denied waiver of the filing fee. The trial court denied Suniville's application and requested payment of the filing fee in an unsigned minute entry. Suniville then filed a Notice of Appeal based on the unsigned minute entry. The record does not contain any indication that the trial court ruled on the merits of the petition. Moreover, the unsigned minute entry cannot serve as a basis for interlocutory appeal under Rule 5(a) of the Utah Rules of Appellate Procedure, although Suniville did not seek permission to appeal under that rule.

An appeal as a matter of right may be taken only from a final order or judgment that disposes of the petition. See Utah R. App. P. 3(a); see also Houston v. Intermountain Health Care, Inc., 933 P.2d 403, 406 (Utah Ct. App. 1997) ("a judgment is not a final, appealable order if it does not dispose of all the claims in a case."). This Court has no jurisdiction over Suniville's petition until the trial court issues a final order on the petition.

The appeal is, therefore, dismissed for lack of jurisdiction.
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
William A. Thorne, Jr., Judge