State of Utah, in the interest of A.S.

State of Utah, in the interest of A.S.

IN THE UTAH COURT OF APPEALS
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State of Utah, in the interest of A.S., a person under eighteen years of age.
_____________________________

A.S.,
Appellant,

v.

State of Utah,
Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20030266-CA

F I L E D
(July 17, 2003)

2003 UT App 255

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Third District, Salt Lake Department

The Honorable Kimberly K. Hornak

Attorneys: Susan Rose, Sandy, for Appellant

Mark Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee

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Before Judges Davis, Greenwood, and Thorne.

PER CURIAM:

This case is before the court on a sua sponte motion for summary dismissal on the basis that it is not taken from a final appealable order.

A.S. appeals from the juvenile court's denial of a pretrial motion to suppress evidence. "An appeal is improper if it is taken from an order or judgment that is not final, see Utah R. App. P. 3(a), unless it fits within an exception to the final judgment rule." Bradbury v. Valencia, 2000 UT 50,¶9, 5 P.3d 649. "[A] judgment is final when it 'ends the controversy between the parties litigant.'" Id. (citations omitted). An appeal may be taken from an interlocutory order only if "statutorily permissible, if the appellate court grants permission under rule 5 of the Utah Rules of Appellate Procedure, or if the trial court expressly certifies them as final for purposes of appeal under rule 54(b) of the Utah Rules of Civil Procedure." Id. The State correctly notes that there is no statute permitting an appeal of right from the denial of a motion to suppress in a delinquency proceeding, and rule 54(b) does not apply in this context. Although rule 5 of the Utah Rules of Appellate Procedure allows an appeal from an interlocutory order, A.S. did not file a petition for permission to appeal; accordingly, this court did not grant permission to appeal from the denial of the motion to suppress. A.S. may, however, challenge the ruling in an appeal taken from a final adjudication of delinquency.

In response to the sua sponte motion raising this court's lack of jurisdiction, counsel for A.S. requests this court to "sua sponte" consider the appeal and the juvenile court's jurisdiction over A.S., who subsequently turned eighteen years of age.(1) Once a court has concluded that it lacks jurisdiction, it "retains only the jurisdiction to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989).

We dismiss the appeal for lack of jurisdiction.

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James Z. Davis, Judge

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge

1. After filing his notice of appeal, A.S. obtained a stay of proceedings in the juvenile court while he pursued his "appeal" to this court. The juvenile court did not transmit the notice of appeal to this court until eleven months after it was filed.