Swart v. State of Utah

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Swart v. State. Filed January 5, 2001 IN THE UTAH COURT OF APPEALS


Richard S. Swart,
Petitioner and Appellant,


State of Utah,
Respondent and Appellee.

(Not For Official Publication)

Case No. 20000511-CA

January 5, 2001 2001 UT App 2 -----

Third District, Salt Lake Division
The Honorable Frank G. Noel
Richard S. Swart, Draper, Appellant Pro Se
Jan Graham, Erin Riley, and Laura DuPaix, Salt Lake City, for Appellee

Before Judges Greenwood, Davis, and Thorne.


The State moved for summary disposition of this appeal on the ground that the court did not have jurisdiction because petitioner's notice of appeal was not timely filed. Petitioner seeks summary reversal of the trial court's denial of his petition for post-conviction relief.

Rule 4(a) of the Utah Rules of Appellate Procedure provides that a notice of appeal must be filed within 30 days of entry of the judgment or order appealed from which the appeal is taken. The trial court's order dismissing petitioner's request for post-conviction relief was entered on March 6, 2000. His notice of appeal was filed on June 7, 2000. When a notice of appeal is filed beyond the 30 days allowed by Utah Rule of Appellate Procedure 4(a), this court does not have jurisdiction to consider an appeal. See, e.g., Glezos v. Frontier Inv., 896 P.2d 1230 (Utah Ct. App. 1995), State v. Johnson, 635 P.2d 36, 37 (Utah 1981). This rule applies whether or not an appellant has received notice that a final order has been entered. Utah R. Civ. P. 58A(c) and (d).

Petitioner suggests that the time for filing his appeal was tolled by both his filing of objections to the trial court's findings, conclusions and order and the trial court's grant of his motion for extension of time to file his appeal. We note that the objections were not filed within 10 days of the trial court's order, as required by Utah Rules of Civil Procedure 52(b) and 59(b). Untimely post-judgment motions do not toll the time for appeal. See, e.g., Burgers v. Maiben, 652 P.2d 1320, 1321 (Utah 1982) (per curiam); Nielson v. Gurley, 888 P.2d 130, 133 (Utah Ct. App. 1994). Additionally, petitioner made his motion for extension of time to file the appeal beyond the time allowed for such motions by rule 4(e). Since the motion was untimely, the trial court did not have power to extend the time for filing.

Accordingly, it is hereby ordered that the appeal is dismissed for lack of jurisdiction. Because we dismiss the case, we do not consider the merits of other pending motions in this appeal.

Pamela T. Greenwood,
Presiding Judge

James Z. Davis, Judge

William T. Thorne, Jr., Judge