State of Utah v. Oliver

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Michael William Oliver,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case Nos. 20030119-CA, 20030120-CA, 20030121-CA

F I L E D
(May 8, 2003)
 

2003 UT App 137

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Second District, Farmington Department

The Honorable Thomas L. Kay

Attorneys: D. Bruce Oliver, Salt Lake City, for Appellant

Mark L. Shurtleff and Laura B. Dupaix, Salt Lake

City, for Appellee

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Before Judges Jackson, Billings, and Bench.

PER CURIAM:

This case is before the court on the State's motion for summary dismissal based on lack of jurisdiction because of an untimely notice of appeal. See Utah R. App. P. 10. Oliver was sentenced on his plea of guilty relating to this criminal case on January 16, 2003. On February 10, 2003, Oliver filed a motion to withdraw his plea in the trial court. The same day, he filed a notice of appeal in this court. This court issued a default dismissal for failure to file a docketing statement on March 13, 2003. On March 27, 2003, the trial court denied Oliver's motion to withdraw his plea. On March 28, 2003, Oliver filed both a motion to reinstate this appeal and a new notice of appeal relating to the same case, which received a new case number.

The State filed a motion to dismiss this appeal on the basis that the notice of appeal was prematurely filed. When a timely motion to withdraw a plea is filed in the trial court, it tolls the time for filing a notice of appeal. See Utah R. App. P. 4(b). Moreover, a notice of appeal filed before ruling on the motion for a new trial has no effect. See id. Therefore, the notice of appeal was filed untimely, and this court lacks jurisdiction over the appeal. "When a matter is outside the court's jurisdiction it retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989).

The appeal is dismissed for lack of jurisdiction.

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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