Glasscock v. State of Utah

Glasscock v. State of Utah

IN THE UTAH COURT OF APPEALS
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David Glasscock,
Petitioner and Appellant,

v.

State of Utah,
Respondent and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20030168-CA

F I L E D
(July 17, 2003)

2003 UT App 254

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Third District, Salt Lake Department

The Honorable Timothy R. Hanson

Attorneys: David Glasscock, Gunnison, Appellant Pro Se

Brett J. Delporto and Mark L. Shurtleff,

Salt Lake City, for Appellee

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Before Judges Jackson, Greenwood, and Orme.

PER CURIAM:

Petitioner David Glasscock appeals from an order denying his petition for post-conviction relief. This case is before the court on its own motion for summary disposition. The State contends that this court lacks jurisdiction to consider Petitioner's appeal. See, e.g., Glezos v. Frontier Invs., 896 P.2d 1230, 1233 (Utah Ct. App. 1995) (noting that lack of jurisdiction can be raised at any time).

In general, a "notice of appeal . . . shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from." Utah R. App. P. 4(a). However, "[i]f a timely motion under the Utah Rules of Civil Procedure is filed in the trial court . . . under Rule 59 to alter or amend the judgment[,] . . . the time for appeal . . . shall run from the entry of the order . . . denying . . . such motion." Utah R. App. P. 4(b). A rule 59(e) motion is timely if

it is "served not later than 10 days after entry of the judgment." Utah R. Civ. P. 59(e). "A notice of appeal filed

before the disposition of . . . the [rule 59(e)] motion[] shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order of the trial court disposing of the motion . . . ." Utah R. App. P. 4(b).

In determining whether a motion is a rule 59(e) motion, the substance of the motion, not its caption, is controlling. See, e.g., Bonneville Billing & Collection v. Torres, 2000 UT App 338,¶4, 15 P.3d 112 (per curiam). "[A] motion filed within ten days of the entry of judgment that questions the correctness of the court's findings and conclusions is properly treated as a post-judgment motion under either Rules 52(b) or 59(e)." Bonneville Billing & Collection, 2000 UT App 338 at ¶4 (quotations and citations omitted). Petitioner's objections to the findings questioned the correctness of the district court's conclusions. Therefore, the objections were in substance rule 59(e) motions.(1)

The district court entered the order dismissing the petition on February 14, 2003. Petitioner's objections to the findings of fact were served on February 14, 2003. Therefore, the State is correct that the objections were timely "served not later than 10 days after entry of the" order dismissing the petition. Utah R. Civ. P. 59(e); see Hudema v. Carpenter, 1999 UT App 290,¶18, 989 P.2d 491 ("Rule 59 sets an outside deadline but does not prohibit early service" of the motion.). Petitioner's notice of appeal was filed after the objections were timely served and the same day one of the objections was filed in the district court, but before the district court denied the objections on April 8, 2003. Therefore, the notice of appeal was premature and had no effect. See Utah R. App. P. 4(b). Because the notice of appeal was premature, we lack jurisdiction and must dismiss the appeal. 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 [matter].").

Accordingly, the appeal is dismissed for lack of jurisdiction.

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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

1. Petitioner contends that his motion to vacate was a rule 60(b)(7) motion and therefore the order dismissing the petition was final and his notice of appeal filed within thirty days of that order was timely. See, e.g., Sittner v. Schriever, 2000 UT 45,¶21, 2 P.3d 442 (noting that a rule 60(b) motion does not toll time for appeal nor suspend finality of underlying judgment). However, Petitioner does not contend that his earlier objections to the findings of fact were not rule 59(e) motions.