State of Utah v. Guadarrama

State v. Guadarrama

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Carlos Lopez Guadarrama,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020668-CA
 

F I L E D
(October 9, 2003)
 

2003 UT App 329

 

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First District, Brigham City Department

The Honorable Ben H. Hadfield

Attorneys: Jack H. Molgard, Brigham City, for Appellant

Mark L. Shurtleff, Kenneth A. Bronston, and J. Frederic Voros Jr., Salt Lake City, and Roger F. Baron, Brigham City, for Appellee

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Before Judges Bench, Orme, and Thorne.

ORME, Judge:

Defendant's conviction was entered more than seven years before he filed his motion to vacate conviction, and his sentence had been long since served in its entirety. The trial court properly regarded Defendant's motion as a motion to withdraw his guilty plea.

A trial court may not accept a guilty plea until "the defendant has been advised of the time limits for filing any motion to withdraw the plea." Utah R. Crim. P. 11(e)(7). The trial court in this case acknowledged that the transcript of the plea hearing does not reflect that Defendant was advised of the time limits for filing a motion to withdraw his plea.

"[W]ithdrawal of a plea of guilty is a privilege, not a right." State v. Gallegos, 738 P.2d 1040, 1041 (Utah 1987) (footnote omitted). Thus, "[f]ailure to advise the defendant of the time limits for filing any motion to withdraw a plea of guilty . . . is not a ground for setting the plea aside, but may be the ground for extending the time to make a motion under Section 77-13-6." Utah R. Crim. P. 11(f) (emphasis added). At the relevant times, section 77-13-6(2)(b) provided that "[a] request to withdraw a plea of guilty or no contest is made by motion and shall be made within 30 days after the entry of the plea." Utah Code Ann. § 77-13-6(2)(b) (1999).(1)

The use of the word "may" in rule 11(f) indicates that the court has discretion in deciding whether to grant an extension, see In re M.C., 940 P.2d 1229, 1236 (Utah Ct. App. 1997), and we review exercises of discretion only for abuse of discretion. See Teece v. Teece, 715 P.2d 106, 108-09 (Utah 1986). In light of the considerable time that had passed between Defendant's plea and his motion, especially given that the impetus for the motion seems to have been a continued concern about deportation even after the conviction was reduced to a class B misdemeanor, the trial court did not abuse its discretion in refusing to extend the time within which Defendant could bring his motion.

Affirmed.

______________________________

Gregory K. Orme, Judge

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WE CONCUR:

______________________________

Russell W. Bench, Judge

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William A. Thorne Jr., Judge

1. The statute, as amended May 5, 2003, now provides: "A request to withdraw a plea of guilty or no contest, except for a plea held in abeyance, shall be made by motion before sentence is announced. Sentence may not be announced unless the motion is denied. For a plea held in abeyance, a motion to withdraw the plea shall be made within 30 days of pleading guilty or no contest." Utah Code Ann. § 77-13-6(2)(b) (Supp. 2003).