State of Utah v. Hanigan

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Asgia Ji Hanigan,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010996-CA

F I L E D
December 12, 2002 2002 UT App 424 -----

Eighth District, Duchesne Department
The Honorable A. Lynn Payne

Attorneys:
Julie George, Salt Lake City, for Appellant
Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee -----

Before Judges Billings, Bench, and Thorne.

PER CURIAM:

Appellant Asgia J. Hanigan appeals convictions of Sodomy on a Child and Aggravated Sexual Abuse of a Child, first degree felonies. This case is before the court on the State's motion to dismiss for lack of jurisdiction.

The district court entered its final judgment and sentence on May 22, 2001. Hanigan filed a notice of appeal on November 27, 2001, well beyond the 30-day limit for filing a notice of appeal. See Utah R. App. P. 4(a). Hanigan contends that this court has jurisdiction as a result of his filing of a motion for new trial. See Utah R. App. P. 4(b).

"A motion for new trial shall be made within 10 days after imposition of sentence, or within such further time as the court may fix during the ten-day period." Utah R. Civ. P. 24(c). The time for filing a motion for new trial expired on June 6, 2001, when calculated without counting intervening weekends and holidays. See Utah R. Crim. P. 2(a). Rule 24 allows the trial court to extend the time for filing a motion for new trial only if the extension is "fixed" during the original ten-day period. See Utah R. Crim. P. 24(c). In addition, rule 2 of the Utah Rules of Criminal Procedure specifically precludes the trial court from extending the time period for seeking a new trial on a motion made after expiration of the original ten-day period. See Utah R. Crim P. 2(b)(2).

Hanigan filed a motion to extend the time to make a motion for new trial in this case on June 8, 2001, two days after the original ten-day period. Accordingly, the order extending the time to July 16, 2001 was not entered until June 18, 2001, almost two weeks after expiration of the original ten-day period. Hanigan misrepresents the trial court record by stating that a June 4, 2001 minute entry granted a motion to extend the time to file a motion for new trial. The minute entry actually states that Hanigan's counsel "will file a Motion to Extend the Time for Appeal." The court clearly did not grant any extension, nor did it make any reference to a motion for new trial. Counsel also did not file a motion to extend the time for appeal. The time for filing a motion for new trial was not extended pursuant to rule 24(c), and the motion for new trial filed on September 11, 2001 was untimely.(1)

Rule 4(b) of the Utah Rules of Appellate Procedure provides "if a timely motion under the Utah Rules of Criminal Procedure is filed in the trial court under Rule 24 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial." "An untimely motion for new trial has no effect on the running of the time for filing a notice of appeal." Burgers v. Maiben, 652 P.2d 1320, 1321 (Utah 1982). The motion for new trial in this case was not timely and did not toll the time for appeal. Accordingly, the notice of appeal filed following disposition of that motion, but over five months after expiration of the time to appeal from the final judgment, was untimely.

Hanigan asserts that his pro se letter directed to the trial court after trial, but prior to sentencing, should be construed as a timely motion for new trial. Rule 24 of the Utah Rules of Criminal Procedure requires a motion for new trial to be filed within ten days "after the imposition of sentence." Utah R. Crim. P. 24(c). This court held in State v. Vessey, 957 P.2d 1239, 1240 (Utah Ct. App. 1998), that a motion for new trial filed after trial, but before sentencing, is premature under rule 24 and does not extend the time for appeal. Thus, even if we were to construe the letter as a motion for new trial, it would be premature and would not extend the time for filing a notice of appeal.

Finally, pending issues regarding restitution do not suspend the time for appeal. It is well established that the final appealable judgment in a criminal case is the sentence. See State v. Gerrard, 584 P.2d 885, 886 (Utah 1978) ("[I]t is the sentence itself which constitutes a final judgment from which appellant has the right to appeal.").

Accordingly, we dismiss the appeal for lack of jurisdiction.
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
William A. Thorne Jr., Judge

1. The trial court's written order purported to extend the time to file a motion for new trial to July 16, 2001. In a telephonic conference held in August, 2001, the court apparently orally granted a further extension to September 10, 2001. The motion for new trial dated September 10, was filed with the court on September 11, 2001.