State of Utah, v. Humphrey

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Steven Humphrey,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010503-CA

F I L E D
May 16, 2002 2002 UT App 167 -----

Eighth District, Duchesne Department
The Honorable A. Lynn Payne

Attorneys:
Julie George, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee

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Before Judges Jackson, Bench, and Orme.

PER CURIAM:

This case is before the court on Appellee's motion to dismiss for lack of jurisdiction. The "judgment and order" was entered on January 23, 2001, and the notice of appeal was filed on May 22, 2001, beyond the thirty days allowed for filing a notice of appeal. See Utah R. App. P. 4. Appellant contends that, in an informal discussion in chambers, held on April 23, 2001, the parties agreed on a notice of appeal "extension" until thirty days after April 23, 2001. However, assuming that this conversation could be interpreted as a request for, and grant of, an extension of time to file a notice of appeal, the request came more than thirty days after the notice of appeal was due. Therefore, the trial court did not have authority to extend the period of time in which to file a notice of appeal. Rule 4(e) of the Utah Rules of Appellate Procedure allows for an extension of up to thirty days, when the request is made within thirty days "after the expiration of the time prescribed" for filing the notice of appeal.

For the reasons stated above, the notice of appeal was untimely and this court lacks jurisdiction. When this court lacks jurisdiction, it retains only the authority to dismiss the action. See Serrato v. Utah Transit Auth., 2000 UT App 299,¶7, 13 P.3d 616; Varian-Eimac v. Lamoraeux, 767 P.2d 569, 570 (Utah Ct. App. 1989). Appellee's motion to dismiss for lack of jurisdiction is granted. The appeal is dismissed.
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Russell W. Bench, Judge
 
 

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Gregory K. Orme, Judge