State of Utah v. Searle

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Carey Searle,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030531-CA
 

F I L E D
(August 28, 2003)
 

2003 UT App 295

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Fourth District, Provo Department

The Honorable Fred D. Howard

Attorneys:
Shelden R. Carter, Provo, for Appellant

Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee

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Before Judges Jackson, Greenwood, and Thorne.

PER CURIAM:

This case is before the court on its own motion for consideration of summary dismissal due to an untimely notice of appeal. See Utah R. App. P. 4(a). Both parties filed a response to this court's motion.(1)

Searle pleaded guilty and mentally ill on October 22, 2001 to Sexual Abuse of a Child, a second degree felony. On May 30, 2002 Searle was sentenced to a prison term. He filed a timely motion to withdraw his plea, which the trial court denied. Searle then filed a motion to reconsider the ruling on the motion to withdraw the plea. That motion was granted, but the trial court again denied the motion to withdraw the plea. Searle filed his notice of appeal on February 24, 2003, within thirty days of denial of the motion to reconsider, but beyond thirty days after denial of the motion to withdraw the plea.

Under rule 4(b) of the Utah Rules of Appellate Procedure, a timely motion to withdraw a plea tolls the time for filing a notice of appeal until thirty days after ruling on the motion.(2) A motion to reconsider a ruling is not among the post-judgment motions that toll the time for filing a notice of appeal. Because the notice of appeal was filed within thirty days of ruling on the motion to reconsider and not within thirty days of ruling on the motion to withdraw the plea, the notice of appeal is untimely.

Because the notice of appeal was untimely, this court is deprived of jurisdiction of the appeal. Once this 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 this appeal.

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Norman H. Jackson,

Presiding Judge

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Pamela T. Greenwood, Judge

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William A. Thorne Jr., Judge

1. Appellant Carey Searle, however, was apparently operating on the incorrect presumption that the court was considering summary reversal of the trial court on the basis of manifest error, pursuant to rule 10(a)(3) of the Utah Rules of Appellate Procedure, rather than summary affirmance, pursuant to rule 10(a)(2). However, the notice sent to the parties cited rule 10(a)(2) and informed the parties specifically that the issue under consideration was an untimely notice of appeal. Searle's memorandum is, therefore, not responsive to the court's expressed concern.

2. This provision was amended, effective November 1, 2002, to add a motion to withdraw a plea among those that toll the time for filing a notice of appeal. We do not address whether the amended provision applies to this appeal because the notice of appeal was untimely regardless of whether the provision applies.