State of Utah v. Finlayson

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Jeffery Russell Finlayson,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000744-CA

F I L E D
February 14, 2002 2002 UT App 36 -----

Third District, Salt Lake Department
The Honorable Homer F. Wilkinson

Attorneys:
Heather Johnson and Robert K. Heineman, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee -----

Before Judges Jackson, Bench, and Davis.

BENCH, Judge:

"If a judgment of conviction or other order is affirmed or modified, the judgment or order affirmed or modified shall be executed." Utah R. App. P. 30(b). Because Defendant's convictions for rape and forcible sodomy were affirmed on appeal, the trial court may not have had jurisdiction to resentence Defendant. See, e.g., State v. Montoya, 825 P.2d 676, 679 (Utah Ct. App. 1991) ("To determine whether [defendant's] appeal of his resentencing is properly before this court, we must determine whether the initial sentence was valid. If it was valid, the trial court would have had no further subject matter jurisdiction to resentence [defendant].").

In any event, even if the trial court had jurisdiction to resentence, Defendant was not prejudiced by the court's failure to resolve inconsistencies between the trial testimony and the official version of the offense in the pre-sentence investigation report. Judge Wilkinson heard the evidence at trial and expressed a recollection of the trial evidence when he resentenced Defendant. The sentence imposed is fully consistent with both the evidence and the gravity of the offenses.

Accordingly, the trial court's sentencing order is affirmed.
 
 
 

______________________________
Russell W. Bench, Judge -----

WE CONCUR:
 
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 
 

______________________________
James Z. Davis, Judge