State of Utah v. Langi

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Joseph Maka Langi,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020396-CA

F I L E D
September 19, 2002 2002 UT App 296 -----

Third District, Salt Lake Department
The Honorable Judith S.H. Atherton

Attorneys:
Kent R. Hart, Salt Lake City, for Appellant
Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee -----

Before Judges Jackson, Billings, and Bench.

PER CURIAM:

Appellant Joseph Maka Langi appeals his conviction of two counts of aggravated robbery, a first degree felony. Following his conviction by a jury, but before entry of the judgment and sentence, Langi filed a motion for new trial. He filed a notice of appeal following entry of an order denying the motion.

This case is before the court on a sua sponte motion for summary dismissal for lack of jurisdiction. See State v. Vessey, 957 P.2d 1239, 1240 (Utah Ct. App. 1998) (holding premature motion for new trial filed before judgment does not toll appeal time under rule 4(b) of Utah Rules of Appellate Procedure). Although both parties agree that we lack jurisdiction, they request different treatment by this court. Langi requests the court to dismiss the appeal and remand to the district court with directions to resentence him without requiring a petition to be filed under State v. Johnson, 635 P.2d 36 (Utah 1981). In contrast, the State requests this court to stay the appeal pending the Utah Supreme Court's disposition in State v. Putnik, Case No. 20010557-SC. Based upon our review of the district court record, it is unnecessary to adopt the approach urged by either party.

The district court docket reflects that Langi was orally sentenced on June 11, 2001. However, no signed judgment and sentence appears in the district court record that was transmitted to this court. Because no final and appealable judgment has been entered, we lack jurisdiction over the appeal. 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.") The time for initiating an appeal will not commence until entry of the signed judgment and sentence in district court. See Utah R. App. P. 4(a) (stating notice of appeal shall be filed "within thirty days after entry of judgment or order appealed from.").

We dismiss the appeal for lack of jurisdiction, without prejudice to a timely appeal filed after the entry of final judgment.
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge
 
 

______________________________
Russell W. Bench, Judge