State of Utah v. Dunn

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Diane Marie Smith Dunn,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020713-CA

F I L E D
November 7, 2002 2002 UT App 369 -----

Third District, Salt Lake Department
The Honorable William W. Barrett

Attorneys:
Benjamin A. Hamilton, Salt Lake City, for Appellant
David E. Yocom and Gregory M. Warner, Salt Lake City, for Appellee -----

Before Judges Jackson, Billings, and Thorne.

PER CURIAM:

This case is before the court on its own motion for summary disposition based on an untimely notice of appeal and a question so insubstantial as to not merit further consideration. Because we determine that the notice of appeal was filed untimely, we do not address the issue of insubstantial question.

A bench trial was held on June 10, 2002. Appellant stipulated that he committed the offenses of Driving Under the Influence, Unsafe Lane Travel, and Speeding. According to the record, Appellant made an oral motion to dismiss on the day of the trial, which the trial court denied. The record contains no written motion. The trial court found Appellant guilty of the three offenses and imposed sentence the same day. A sentence, judgment, and commitment was also entered.

No post-trial motions appear in the record. However, on August 27, 2002, an order issued from the trial court which formally denied Appellant's motion based on State v. Shondel, 453 P.2d 146 (Utah 1969). Appellant filed her notice of appeal on September 3, 2002, more than thirty days after entry of the sentence, judgment, and commitment. It is the sentence itself that constitutes the final appealable order. See State v. Gerrard, 584 P.2d 885, 886 (Utah 1978). Moreover, a motion to dismiss is not one of the motions enumerated in rule 4(b) of the Utah Rules of Appellate Procedure that toll the time for filing of a notice of appeal. Because the notice of appeal was filed more than thirty days after entry of the sentence, judgment, and commitment, it is untimely and this court lacks jurisdiction to consider the appeal.

The appeal is summarily dismissed.
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
William A. Thorne Jr., Judge