State of Utah v. Finster

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellant,

v.

Cody Finster,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030337-CA
 

F I L E D
(June 26, 2003)
 

2003 UT App 223

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Fourth District, Provo Department

The Honorable James R. Taylor

Attorneys: Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellant

Michael D. Esplin, Provo, for Appellee

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Before Judges Jackson, Greenwood, and Orme.

PER CURIAM:

The State appeals from a pretrial order dismissing a possession of a dangerous weapon charge from a felony information. This case is before the court on its own motion for summary disposition based on lack of jurisdiction. See Utah R. App. P. 10(e).

The State concedes that this court lacks jurisdiction to consider the pretrial order, on the State's appeal as of right, at least at this juncture. See Utah Code Ann. § 77-18a-1(2)(a), (f) (1999). When a matter is outside the court's jurisdiction it retains only the authority to dismiss. See Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989).

Subsection 77-18a-1(2)(a) permits an appeal from a judgment that wholly dismisses a felony information following a refusal to bind a defendant over for trial. However, the order from which the State appeals in the present case did not wholly dismiss the felony information. Defendant has been bound over for trial on two other charges. Furthermore, subsection 77-18a-1(2)(f) permits a petition for permission to appeal from an interlocutory order that in part dismisses a felony information. In the present case, the pretrial order in part dismissed the felony information. However, as the State concedes, it failed to timely file a petition for permission to appeal from the order.

Accordingly, this appeal is dismissed.

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Norman H. Jackson,

Presiding Judge

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge