Garcia v. State of Utah

----ooOoo----

Jose Cristobal Cota Garcia
aka Armando Gutierrez-Feliz,
Petitioner and Appellant,

v.

State of Utah,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020655-CA

F I L E D
November 29, 2002 2002 UT App 395 -----

Third District, Salt Lake Department
The Honorable Dennis M. Fuchs

Attorneys:
Jose Cristobal Cota Garcia, Texarkana, TX, Appellant Pro Se
Mark L. Shurtleff and Erin Riley, Salt Lake City, for Appellee -----

Before Judges Billings, Bench, and Thorne.

PER CURIAM:

Appellant appeals the denial of his Petition for Clarification of the Court's Final Order entered on July 23, 2002. This case is before the court on a sua sponte motion for summary disposition.

Although this appeal is purportedly taken from the district court's July 23, 2002 order, Appellant clearly seeks appellate review of the August 11, 2000 dismissal of his Petition for Post-Conviction Relief, which sought to vacate a criminal conviction based upon a claim he was a minor at the time of sentencing. Appellant did not file a timely notice of appeal from the dismissal, and both the time for appeal under rule 4(a) of the Utah Rules of Appellate Procedure and the time to seek an extension under rule 4(e) of the Utah Rules of Appellate Procedure have long since expired. There is no basis for this court to exercise jurisdiction over a "delayed appeal" from the August 11, 2000 order. "If an appeal is not timely filed, this court lacks jurisdiction to hear the appeal." Serrato v. Utah Transit Auth., 2000 UT App 299,¶7, 13 P.3d 616.

The sole issue properly before this court on appeal is whether the district court erred in the entry of the July 23, 2002 order denying the Petition for Clarification. Appellant identifies no error in the denial of the petition. Furthermore, rather than demonstrating any vagueness or need for clarification of the order dismissing the original petition, the Petition for Clarification merely sought to reargue the same claim that had been rejected by the district court on the merits over a year and a half earlier by the dismissal of the petition for post-conviction relief. The district court correctly ruled that the criminal and post-conviction proceedings were each completed and closed and that the August 11, 2000 order was not vague and did not require clarification.

Appellant has not raised any meritorious ground on which to appeal the only ruling over which this court may exercise appellate jurisdiction. The Petition for Clarification filed more than a year after dismissal of the petition for post-conviction relief did not operate to extend the time to appeal from the dismissal. See Utah R. App. P. 4(b) (stating the specific timely motions that extend the time for appeal).

Accordingly, the motion for summary dismissal is granted and the judgment is affirmed.
 
 

_____________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
William A. Thorne Jr., Judge