State of Utah v. Anderson

State v. Anderson

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Jimmy Anderson,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20030671-CA

F I L E D
(October 23, 2003)

2003 UT App 365

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Third District, Salt Lake Department

The Honorable Judith S. Atherton

Attorneys: Franklin Richard Brussow, Salt Lake City, for

Appellant

David E. Yocom and Katherine Peters, Salt Lake City,

for Appellee

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Before Judges Jackson, Bench, and Orme.

PER CURIAM:

This case is before the court on the State's motion for summary dismissal for lack of jurisdiction due to an untimely notice of appeal. See Utah R. App. P. 4(a). Appellant Anderson has responded to the State's motion. Anderson pleaded guilty to two misdemeanor offenses. The Sentence, Judgment, and Conviction was entered by the trial court on July 16, 2003. Anderson filed a notice of appeal on August 18, 2003.

A notice of appeal must be filed within thirty days of entry of the final order. In a criminal case, the sentence itself constitutes the final order. See State v. Gerrard, 584 P.2d 885, 886 (Utah 1978). Therefore, the notice of appeal was required to be filed on or before August 15, 2003, in order to be timely.

Anderson argues that he was never served with a formal order of sentencing and that, because July 24, 2003 was a holiday that occurred during the thirty days, he was required to file the notice of appeal on or before August 16, 2003. Further, because August 16, 2003 was a Saturday, he claims he had until the following Monday, August 18, 2003, to file the notice.

Both contentions are in error. Anderson has cited no authority for the proposition that a defendant must be served with a formal order before the time for filing an appeal begins to run. Moreover, Anderson was present at the imposition and entry of the sentence.

In order for a holiday to extend the time for filing a notice of appeal, the holiday must fall on the day the filing is actually due. See Utah R. App. P. 22(a). In this case, the holiday fell in the middle of the thirty day period and, as such, did not extend the time for filing the notice of appeal. Therefore, the notice of appeal was untimely and this court lacks jurisdiction. Once a court has determined that it lacks jurisdiction, it "retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1998).

Accordingly, we dismiss the appeal.

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Norman H. Jackson,

Presiding Judge

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Russell W. Bench, Judge

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Gregory K. Orme, Judge