State of Utah v. Garner

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Kelly Lafe Garner,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010762-CA

F I L E D
July 11, 2002 2002 UT App 238 -----

Second District, Farmington Department
The Honorable Thomas L. Kay

Attorneys:
Scott L. Wiggins, Salt Lake City, for Appellant
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee -----

Before Judges Davis, Greenwood, and Orme.

PER CURIAM:

This case is before the court on Appellee's motion for summary disposition based on an untimely notice of appeal. Appellant filed a notice of appeal from a sentence, judgment, and conviction originally entered July 26, 2001. The notice of appeal was filed on September 20, 2001, fifty-five days after entry of the sentence, judgment, and commitment. Appellant contends that the sentence, judgment, and commitment were modified twice, thereby extending the time for filing the notice of appeal.

The first alleged modification occurred on August 21, 2001. Appellant contends that the trial court modified the document to reflect the conditional nature of the plea. The second alleged modification occurred on May 14, 2002. Appellant argues that the trial court modified the sentence, judgment, and conviction on this occasion to clarify that the issue preserved for appeal was the denial of Appellant's motion to dismiss the information. Appellant indicates that the trial court also clarified, in the modification, that the State had fulfilled its requirement under the plea agreement to write a letter to the Alabama Kilby Correctional Facility recommending that no additional time be served for the criminal conviction involved in this appeal and that the $350 had been returned by the State to Appellant pursuant to the agreement. Lastly, the modified sentence, judgment, and conviction clarified the restitution amount to be $1,922.29, and that the $350 returned to Appellant was to offset the restitution.

The trial court record contains only one change made to the sentence, judgment, and conviction on May 14, 2002. The August 21, 2001 amendment is not contained in the trial court record. Beside the portion of the document that lists the plea as guilty, the trial judge wrote "conditional." At the bottom of the document the changes Appellant asserts regarding restitution were added. However, the original sentence, judgment, and conviction clearly stated that the plea was a Sery plea. Further, the original document states that restitution is imposed in an amount to be determined and that the $350 will be returned and offset restitution. The original document also indicates that the State is obligated to write the letter to the Alabama Kilby Correctional Facility.

Assuming all modifications were made as Appellant alleges, these modifications are not material changes to the sentence, judgment, and commitment and, therefore, the changes do not extend the time for filing Appellant's notice of appeal. See Promax Dev. Corp. v. Raile, 2000 UT 4,¶11, 998 P.2d 254. In addition to the fact that the original sentence, judgment, and conviction states that the plea is a Sery plea, the transcript of the change of plea hearing, which occurred on July 3, 2001, indicates that counsel for Appellant stated on the record, at the time of the plea, that the plea is conditional upon Appellant reserving the right to appeal the trial court's denial of Appellant's motion to dismiss the information, based on a "violation of the Interstate Agreement on Detainer's Act." The plea agreement affidavit, signed by all parties at the time of the plea, also references the conditional nature of the plea and the issue to be appealed.

Because any modifications which were made to the sentence, judgment, and commitment were not material changes they did not extend the time for filing the notice of appeal. The notice of appeal is untimely and, consequently, this court lacks jurisdiction to hear the appeal. See Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989). Appellee's motion to dismiss for lack of jurisdiction is granted and the appeal is dismissed.
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
Pamela T. Greenwood, Judge
 
 

______________________________
Gregory K. Orme, Judge