Farmington v. Wahlstrom

Farmington City,
Plaintiff and Appellee,

v.

Mark Allen Wahlstrom,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020694-CA

F I L E D
September 26, 2002 2002 UT App 309 -----

Second District, Bountiful Department
The Honorable Glen R. Dawson

Attorneys:
Benjamin A. Hamilton, Salt Lake City, for Appellant -----

Before Judges Jackson, Billings, and Bench.

PER CURIAM:

Appellant Mark Allen Wahlstrom appeals his conviction of Possession or Use of a Controlled Substance, a class B misdemeanor, which resulted from a trial de novo in district court following a conviction in the Davis 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 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 Wahlstrom seeking to appeal the district court's ruling on the constitutionality of rule 4-608 of the Utah Rules of Judicial Administration.(1) The right to appeal a decision of the district court following a trial de novo is limited by statute. "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." Utah Code Ann. § 78-5-120(7) (Supp. 2002). In similarly situated appeals seeking review of the 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." Murray City v. Kvenvold, 2002 UT App 263 (per curiam); Murray City v. Serre, 2002 UT App 264 (per curiam); State v. Beuchert, 2002 UT App 266 (per curiam). Wahlstrom's collateral challenge to the jurisdictional holding in those decisions is both procedurally inappropriate and without merit.(2)

Wahlstrom's argument in response to the sua sponte motion suggests his challenge was to the "joint operation" of rule 4-608 and section 78-5-120 to limit his right to appeal. In contrast, the motion filed in district court specifically sought

a ruling that the requirement in Rule 4-608(2)(C) of the Rules of Judicial Administration, requiring a certificate of probable cause as provided in the Rule of Criminal Procedure to stay a sentence from a justice court pending the de novo trial appeal to the district court is unconstitutional and violates the due process and double jeopardy clauses of the Constitutions of both the United States and Utah.

Contrary to Wahlstrom's representation on appeal, the district court's ruling concluded that he lacked standing to challenge rule 4-608(2)(C) because the justice court did not require him to obtain a certificate of probable cause or to fulfill its sentence while his appeal was pending in district court. Accordingly, the district court did not rule on the constitutionality of rule 4-608. Even assuming that the district court had ruled on the constitutionality of rule 4-608, this court lacks jurisdiction over the appeal under section 78-5-120(7) because the district court did not rule on the constitutionality of a statute or ordinance. This case is not distinguishable from Kvenvold, Serre, and Beuchert.

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. Counsel's representation that a conditional guilty plea was entered under State v. Sery, 738 P.2d 935 (Utah Ct. App. 1988), is also unsupported by record evidence that the Sery requirements were satisfied. SeeState v. Bobo, 803 P.2d 1268, 1271 (Utah Ct. App. 1990) (stating appellant bears burden to demonstrate conditional nature of plea is "unambiguously established" in record). There is no reservation of any specific issue for appeal, and no indication that the prosecutor consented to, or the judge approved, a conditional plea. See id. The fact that the sentence was stayed pending appeal is not sufficient evidence of a Sery plea. Id.

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