State of Utah v. Penn

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Nathaniel Frederick Penn,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030200-CA
 

F I L E D
(May 8, 2003)
 

2003 UT App 136

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Seventh District, Moab Department

The Honorable Lyle R. Anderson

Attorneys: James C. Bradshaw and Ann Marie Talaferro, Salt Lake City, for Appellant

Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee

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Before Judges Jackson, Billings, and Bench.

PER CURIAM:

This case is before the court on this court's motion for summary dismissal on the basis of an untimely notice of appeal and on Penn's appeal from the trial court's denial of his application for certificate of probable cause.

When a timely motion for a new trial is filed under rule 24 of the Utah Rules of Criminal Procedure, the time for appeal runs from the order denying the motion for a new trial. See Utah R. App. P. 4(b). A notice of appeal filed before disposition of the motion shall have no effect, and a new notice of appeal must be filed upon a ruling on the motion for a new trial. See id.

The trial court has ruled on the request for a certificate of probable cause, but not on the motion for a new trial. Therefore, the notice of appeal was premature and has no effect. See Kurth v. Wiarda, 1999 UT App 153,¶5, 981 P.2d 417. The time for appeal is tolled until the trial court rules on the motion for a new trial. Because the notice of appeal was filed untimely, this court lacks jurisdiction and retains only the authority to dismiss. See Varian-Eimac Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989).

This court also does not have jurisdiction to address the issue of the denial of Penn's application for a certificate of probable cause. Penn argues that it is fundamentally unfair to require him to choose between a motion for a new trial and a stay of sentence pending appeal. However, it is the trial court's February 19, 2003 ruling on the certificate of probable cause, without ruling on the motion for a new trial, despite the fact that the motions were filed together, which put Penn in this position. Rule 8 of the Utah Rules of Appellate Procedure allows this court to stay sentence pending appeal, not pending resolution of motions before the trial court prior to this court obtaining jurisdiction. This appeal is dismissed without prejudice to the timely filing of a proper notice of appeal upon a ruling on Penn's motion for a new trial.

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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