Park City v. Johnson

----ooOoo----

Park City,
Plaintiff and Appellee,

v.

Barry Johnson,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020589-CA

F I L E D
October 3, 2002 2002 UT App 326 -----

Third District, Silver Summit Department
The Honorable Robert K. Hilder

Attorneys:
Benjamin A. Hamilton, Salt Lake City, for Appellant
Thomas A. Daley, Park City, for Appellee -----

Before Judges Jackson, Billings, and Bench.

PER CURIAM:

Appellant Barry Johnson appeals his convictions of Driving Under the Influence of Alcohol or Drugs, a class B misdemeanor, and Driving on a Denied, Suspended, or Revoked License, a class C misdemeanor, which resulted from a trial de novo in the district court following a conviction in the Summit County Justice Court. This case is before the court on a sua sponte motion for summary dismissal on the basis that this court lacks jurisdiction over an appeal following a trial de novo "unless the district court rules on the constitutionality of a statute or ordinance." Utah Code Ann. § 78-5-120(7) (Supp. 2002).

This appeal is one of several filed by counsel for Johnson seeking to appeal the district court's ruling on the constitutionality of rule 4-608 of the Utah Rules of Judicial Administration. The right to appeal a decision of the district court following a trial de novo is limited by statute. See Utah Code Ann. § 78-5-120(7) ("The decision of the district court is final and may not be appealed unless the district court rules on the constitutionality of a statute or ordinance."). In similarly situated appeals seeking review of a district court's denial of a constitutional challenge to rule 4-608(2)(c), this court held that when an appellant "challenges the constitutionality of a rule, rather than a statute or ordinance as specified under the statute, this court is without jurisdiction over the appeal." State v. Beuchert, 2002 UT App 266 (per curiam); Murray City v. Serre, 2002 UT App 264 (per curiam); Murray City v. Kvenvold, 2002 UT App 263 (per curiam). Johnson's collateral challenge to the jurisdictional holding in those decisions is both procedurally inappropriate and without merit.(1)

In response to the sua sponte motion, Johnson argues that his challenge was to the constitutionality of the operation of rule 4-608 in conjunction with section 78-5-120. However, the motion filed in the district court sought only a ruling on the constitutionality of rule 4-608(2)(c) of the Utah Rules of Judicial Administration, requiring a certificate of probable cause as provided in the Utah Rules of Criminal Procedure in order to stay a sentence from justice court pending the appeal, in the form of a trial de novo in district court. The district court denied Johnson's motion, finding his arguments unpersuasive. The district court did not rule on the constitutionality of any statute or ordinance. Consequently, this court lacks jurisdiction over the appeal under section 78-5-120(7). This case is not distinguishable from Beuchert, Serre, and Kvenvold.

Accordingly, we grant the sua sponte motion and dismiss the appeal for lack of jurisdiction.
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge

1. The case of Sandy City v. Scovel, 2002 UT App 265, cited by Appellant, was dismissed for lack of a final appealable judgment.