State of Utah v. Brown

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Keith A. Brown,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20020978-CA

F I L E D
January 30, 2003 2003 UT App 20 -----

Third District, Salt Lake Department
The Honorable Dennis M. Fuchs

Attorneys:
Keith A. Brown, Shelby, Montana, Appellant Pro Se
Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee

-----

Before Judges Bench, Davis, and Orme.

PER CURIAM:

Keith A. Brown seeks to appeal the district court's order denying his motion to dismiss. This matter is before the court on a sua sponte motion to summarily dismiss for lack of jurisdiction. See Utah R. App. P. 10(a)(1).

In July 1999, Brown was charged with forgery, a third degree felony in violation of Utah Code Ann. § 76-6-501 (1999). Brown failed to appear in court on the charge, and the district court issued a bench warrant for his arrest. Subsequently, Brown was incarcerated in Montana and has never been arrested on the outstanding warrant or appeared in Third District Court on the pending forgery charge.

In October 2002, Brown filed a motion to dismiss the charge in the district court. On appeal, Brown states that the district court denied his motion on October 31, 2002. The State also argues that the district court docket indicates that the court denied the motion in an unsigned minute entry on the same date. However, the record does not contain any order or minute entry regarding the motion. The district court docket does show a docketing note entered on October 31, 2002. However, this note does not deny the motion, but instead states the court denied a hearing on the motion to dismiss. After our careful review of the record, it does not appear that the district court has ever entered an order denying the motion itself.

Even if the district court had entered a ruling denying the motion to dismiss, it would not be a final, appealable order. In a criminal case, "[i]t is the sentence itself which constitutes a final judgment from which appellant has the right to appeal." State v. Gerrard, 584 P.2d 885, 886 (Utah 1979). In this case, Brown has never appeared in district court to be tried, convicted, or sentenced. Consequently, this court does not have jurisdiction in this case because there is not a final order from which to appeal. See Utah R. App. P. 3(a).

Accordingly, we dismiss the appeal for lack of jurisdiction. See Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989) ("When a matter is outside the court's jurisdiction it retains only the authority to dismiss the action.").
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
Gregory K. Orme, Judge