Cahan v. Hon. Ann Boyden

IN THE UTAH COURT OF APPEALS

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John Cahan,
Petitioner,

v.

Honorable Ann Boyden,
Respondent.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030241-CA
 

F I L E D
(April 24, 2003)
 

2003 UT App 116

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Original Proceeding in this Court

Attorneys: John Cahan, Salt Lake City, Petitioner Pro Se

Brent M. Johnson, Salt Lake City, for Respondent

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Before Judges Jackson, Billings, and Bench.

PER CURIAM:

Cahan filed a document which we construe to be a petition for extraordinary relief under rule 65B(b) of the Utah Rules of Civil Procedure. Cahan claims he pleaded no contest to the charge of Driving Under the Influence of Alcohol in justice court. After he was sentenced, he sought legal advice and determined that he wanted to withdraw his plea. He filed a notice of appeal to secure a trial de novo, pursuant to Utah Code Ann. § 78-5-120 (2002), which he concedes was filed untimely. At the pretrial conference the district court determined that it did not have jurisdiction and dismissed the appeal and remanded the case back to the justice court. This petition followed.

Cahan correctly seeks relief in the form of a petition for extraordinary relief because he has no other plain, speedy, and adequate remedy in the form of a regular appeal. He cannot appeal from the district court's dismissal since no constitutional ruling was rendered. See Utah R. Civ. P. 65B(d) and Utah Code Ann. § 78-5-120(7).

However, Cahan has not demonstrated that the district court abused its discretion or failed to perform an act or duty required by the office. See Dean v. Henriod, 1999 UT App 50,¶11, 975 P.2d 946 (quoting Utah R. Civ. P. 65B(d)(2)(A)-(C)). It was, therefore, not an abuse of discretion for the district court to dismiss a case over which it lacked jurisdiction because of an untimely notice of appeal. We affirm the district court's dismissal of the appeal.

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Norman H. Jackson,

Presiding Judge

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Judith M. Billings,

Associate Presiding Judge

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Russell W. Bench, Judge