State of Utah, v. Hathaway

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Tony Scott Hathaway,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010470-CA

F I L E D
April 11, 2002 2002 UT App 115 -----

Fourth District, Fillmore Department
The Honorable Lynn W. Davis

Attorneys:
Shelden R. Carter, Provo, for Appellant
Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee

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Before Judges Bench, Orme, and Thorne.

PER CURIAM:

This matter is before the court on the State's motion for summary disposition pursuant to Rule 10 of the Utah Rules of Appellate Procedure. The State asserts that this court lacks jurisdiction over the appeal because Defendant's notice of appeal was untimely. See Utah R. App. P. 10(a)(1).

On April 25, 2000, a jury found Defendant guilty on one count of rape of a child, a first degree felony, in violation of Utah Code Ann. § 76-5-402.1 (1999). At the sentencing hearing on June 6, 2000, Defendant's counsel made an oral motion to arrest judgment. Counsel did not present the court with any support for the motion. After a brief recess to consider the sentencing arguments, the judge returned to the courtroom and sentenced Defendant to ten years to life in prison. The judgment was signed and entered the same day. A month later, on July 6, 2000, Defendant filed: (1) a motion to arrest judgment, or in the alternative, a motion for a new trial; and (2) a motion to extend the time to file an appeal. Neither motion was supported with a memorandum of law.

Defendant filed a notice of appeal on May 18, 2001, which was within thirty days of the trial court's ruling on the motion to arrest judgment or alternative motion for a new trial, but which was also nearly a year after the judgment was entered. Defendant now argues that the post-trial motions tolled the time to file an appeal.

Neither Rule 23 of the Utah Rules of Criminal Procedure, nor Rule 4 of the Utah Rules of Appellate Procedure, contain any provision that a motion to arrest judgment shall toll the time to file an appeal. See Utah R. Crim. P. 23; Utah R. App. P. 4(b). Thus, Defendant's argument that this motion tolled the time to appeal is incorrect. Defendant's motion for arrest of judgment had no effect on the running of the time period to file an appeal.

Rule 4 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." Utah R. App. P. 4(b) (emphasis added). A timely Rule 24 motion must be made, in writing, "within 10 days after imposition of sentence, or within such further time as the court may fix during the ten-day period." Utah R. Crim. P. 24(c). Furthermore, "'[a]n untimely motion for a new trial has no effect on the running of the time for filing a notice of appeal.'" State v. Vessey, 957 P.2d 1239, 1240 (Utah Ct. App. 1998) (quoting Burgers v. Maiben, 652 P.2d 1320, 1321 (Utah 1982)). Our review of the record in this case establishes that Defendant did not file a motion for a new trial until July 6, 2000, thirty days after sentencing. Clearly, Defendant's motion was untimely under the rule. See Utah R. Crim. P. 24(c). Therefore, this motion did not toll the time period in which to appeal. See Vessey, 957 P.2d at 1240.

Finally, Rule 4 of the Utah Rules of Appellate Procedure provides that "[t]he trial court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal." Utah R. App. P. 4(e) (emphasis added). Defendant's motion to extend the time for appeal was wholly unsupported and failed to even allege any "excusable neglect or good cause" justification for the extension. Id. Thus, as a matter of law, there was no "showing of excusable neglect or good cause" to permit the trial court to extend the time for appeal. See Reisbeck v. HCA Health Servs. of Utah, 2000 UT 48, 2 P.3d 447 (explaining standards of good cause and excusable neglect); Serrato v. Utah Transit Auth., 2000 UT App 299,¶10, 13 P.3d 616 (concluding that there must be some showing of excusable neglect to give meaning to the rule).

Because Defendant's post-trial motions did not toll the time to file a notice of appeal, Defendant's notice of appeal was not timely. Consequently, this court is without jurisdiction to consider it. See Reisbeck, 2000 UT 48 at ¶16 ("Failure to timely file a notice of appeal bars jurisdiction in the appellate court.").

The appeal is dismissed for lack of jurisdiction.
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Gregory K. Orme, Judge
 
 

______________________________
William A. Thorne Jr., Judge