State of Utah v. Gardner

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Edson Gardner,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020762-CA

F I L E D
October 31, 2002 2002 UT App 362 -----

Eighth District, Vernal Department
The Honorable John R. Anderson

Attorneys:
Edson Gardner, Fort Duchesne, Appellant Pro Se
JoAnn B. Stringham, Vernal, for Appellee -----

Before Judges Jackson, Billings, and Thorne.

PER CURIAM:

Appellant seeks to appeal the district court's denial of his motion to dismiss. The case originated in justice court. The justice court denied Appellant's motion to dismiss. Appellant appealed this decision to the district court prior to a trial on the charges.(1) The district court also denied Appellant's motion to dismiss.

This court lacks jurisdiction because no final appealable order has issued. See Utah R. App. P. 4(a). In a criminal case, the sentence itself "constitutes a final judgment from which appellant has the right to appeal." See State v. Gerrard, 584 P.2d 885, 886 (Utah 1978). The denial of Appellant's motion to dismiss is interlocutory in nature and Appellant has not petitioned this court for interlocutory review pursuant to rule 5 of the Utah Rules of Appellate Procedure. Additionally, this court only has authority to review a trial de novo in district court if the district court rules on the constitutionality of a statute or ordinance. See Utah Code Ann. § 78-5-120(7) (Supp. 2002).

Accordingly, the appeal is dismissed for lack of jurisdiction. The dismissal is without prejudice to filing an appropriate appeal upon entry of a final order. Appellee's request for attorney fees and sanctions is denied.
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
William A. Thorne Jr., Judge

1. A criminal defendant is entitled to a trial de novo in district court only if the defendant files a notice of appeal within thirty days of sentencing, a plea of guilty, or a plea of guilty held in abeyance. See Utah Code Ann. § 78-5-120(1) (Supp. 2002). There is no provision for appeal of an interlocutory order issued in a justice court. The district court was in error to rule on the justice court's denial of Appellant's motion to dismiss.