State of Utah v. Ham

State v. Ham

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Rodney Ham,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030010-CA
 

F I L E D
(December 11, 2003)
 

2003 UT App 428

 

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Fourth District, Provo Department

The Honorable Gary D. Stott

Attorneys: Jere Reneer and Lee Fisher, Spanish Fork, for Appellant

Mark L. Shurtleff and Matthew D. Bates, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Orme.

PER CURIAM:

This case is before the court on Appellant Ham's motion for remand, pursuant to rule 23B of the Utah Rules of Appellate Procedure; Ham's motion to supplement the record, pursuant to rule 11(g) of the Utah Rules of Appellate Procedure;(1) and the State's motion to dismiss, pursuant to rule 10 of the Utah Rules of Appellate Procedure.

The State's motion to dismiss contends that this court lacks jurisdiction because the notice of appeal was untimely filed. The Sentence, Judgment, and Commitment was entered June 12, 2001. Ham filed a Motion for an Extension of Time in which to file his motion for a new trial on July 9, 2001. In a September 2001 hearing, the trial court ordered Ham to file his motion for a new trial by October 11, 2001.

Neither the motion for a new trial, nor the motion for an extension of time, were filed within ten days of the Sentence, Judgment, and Commitment, as required by rule 24(c) of the Utah Rules of Criminal Procedure. An untimely motion for a new trial does not suspend the time for filing the notice of appeal. See State v. Putnik, 2002 UT 122,¶8, 63 P.3d 91. Therefore, the notice of appeal was untimely and this court lacks jurisdiction over the appeal. Once a court has concluded that it lacks jurisdiction, it "retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1998).

Accordingly, we dismiss the appeal.

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Judith M. Billings,

Associate Presiding Judge

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Russell W. Bench, Judge

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Gregory K. Orme, Judge

1. Appellant has cited rule 23 of the Utah Rules of Appellate Procedure as authority for supplementing the record, but the State is correct that the appropriate provision is rule 11(g) of the Utah Rules of Appellate Procedure.