State of Utah, v. Golub

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Jason J. Golub,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010923-CA

F I L E D
February 28, 2002 2002 UT App 61 ----

Third District, Salt Lake Department
The Honorable Michael K. Burton

Attorneys:
Gary L. Bell, Salt Lake City, for Appellant
Mark Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee

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Before Judges Billings, Orme, and Thorne.

PER CURIAM:

This case is before the court on its own motion for summary disposition for failure to file a timely notice of appeal. Appellant's Judgment and Sentence was entered August 10, 2001. On September 10, 2001, Appellant filed a pro se "Motion To Withdraw Guilty Plea." Appellant subsequently retained counsel. In a November 16, 2001 hearing, counsel requested the trial court to construe the September 10 motion as a timely notice of appeal. The trial court agreed, and this appeal followed. This court issued a sua sponte motion for summary disposition based on an untimely notice of appeal. Both parties responded.

Appellate courts are generally more lenient with pro se litigants. See Winter v. Northwest Pipeline Corp., 820 P.2d 916, 918-29 (Utah 1991). This court will also look to the substance of the notice of appeal, not just its caption. See Reeves v. Steinfeldt, 915 P.2d 1073, 1077 (Utah Ct. App. 1996). Lastly, the trial court has broad discretion to grant or deny an extension to file a notice of appeal. See Serrato v. Utah Transit Auth., 2000 UT App 299,¶6, 13 P.3d 616.

The purpose of the notice of appeal is to notify the opposing party that an appeal is being taken and to identify the order Appellant appeals. See Nunley v. Stan Katz Real Estate, Inc., 388 P.2d 798 (Utah 1964). The pleading Appellant filed on September 10, 2001 did not provide notice to the opposing party of Appellant's intent to appeal. Further, the pleading did not meet the requirements of Rule 3(d) of the Utah Rules of Appellate Procedure. The pleading did not state which order Appellant appeals, or to which court Appellant appeals. The content of the motion to withdraw the plea addressed the alleged inaccuracy of statements made at sentencing and requested an opportunity "to confront" those statements. Accordingly, it was not a notice of appeal in content or form. For these reasons, the trial court exceeded its discretion in construing or amending the motion to withdraw the plea as a notice of appeal.

The court further exceeded its discretion in deeming the pleading as timely filed on September 10, 2001. The hearing in which the court acted was on November 16, 2001, beyond the thirty days after the date the notice of appeal was due. A motion to extend the time to file notice must also have been made during that thirty days. See Utah R. App. P. 4(e).

Because no proper notice of appeal was timely filed, this court lacks jurisdiction. See State v. Montoya, 825 P.2d 676, 678 (Utah Ct. App. 1991); State v. Palmer, 777 P.2d 521, 522 (Utah Ct. App. 1989). Therefore, the appeal is dismissed. Because we dismiss the appeal for lack of jurisdiction, we need not address Appellant's motion for remand, pursuant to Rule 23B of the Utah Rules of Appellate Procedure.
 
 

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Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
Gregory K. Orme, Judge
 
 

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William A. Thorne Jr., Judge