State of Utah v. Spillers

State v. Spillers

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Billy Frank Spillers,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20000737-CA
 

F I L E D
(November 6, 2003)
 

2003 UT App 370

 

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Third District, Salt Lake Department

The Honorable Anthony B. Quinn

Attorneys: Linda M. Jones, Salt Lake City, for Appellant

Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Jackson, Bench, and Orme.

PER CURIAM:

This case is before the court on the State's motion for summary dismissal for lack of jurisdiction. As the State correctly notes, lack of jurisdiction may be raised at any time. See, e.g., Hudema v. Carpenter, 1999 UT App 290,¶14, 989 P.2d 491.

The State contends that Defendant's notice of appeal is premature because a timely motion for a new trial is pending in the trial court. "[I]f a timely motion is filed in the trial court . . . for a new trial under Rule 24 of the Utah Rules of Criminal Procedure . . . the time for appeal for all parties shall run from the entry of the order denying a new trial

. . . ." Utah R. App. P. 4(b). "A notice of appeal filed before the disposition of [such] motion[] shall have no effect." Id. A new notice of appeal must be filed after the entry of an order denying the motion. See id.

Defendant initially contended that his motion was not timely and therefore contended that his notice of appeal, filed within thirty days after the entry of his sentence, see Utah R. App. P. 4(a), was timely. However, Defendant subsequently conceded that if his motion is a motion for a new trial, the motion was timely.

Defendant contends that in substance, his motion is a motion to arrest judgment, not a motion for a new trial, and a motion to arrest judgment does not affect the time for appeal. See State v. Putnik, 2002 UT 122,¶3, 63 P.3d 91. While Defendant's motion tracks the language of rule 23 of the Utah Rules of Criminal Procedure, it also provides that it is made pursuant to rule 24, which governs motions for a new trial. The caption and the content indicate that the motion is a motion to arrest judgment and for a new trial. This is not a case where the motion's content establishes that it was incorrectly captioned, see Watkiss & Campbell v. FOA & Son, 808 P.2d 1061, 1064-65 (Utah 1991), as a motion for a new trial.

Defendant asserts that he abandoned his motion. However, abandonment of a motion for a new trial must be intentional, see, e.g., Bailey v. Sound Lab, Inc., 694 P.2d 1043, 1044 (Utah 1984), and the record does not establish that Defendant intentionally abandoned his motion. A minute entry indicates that Defendant's trial counsel did not appear at the hearing scheduled on the motion and counsel failed to timely file a docketing statement in the Utah Supreme Court. Thereafter, the supreme court permitted counsel to withdraw. Further, although Defendant contends that no affidavits or essential facts support the motion, see Utah R. Crim. P. 24(b), the motion indicates that it was accompanied by a memorandum. Even if the motion was not properly supported, the motion was filed and pending. In fact, the trial court treated the motion as pending by continuing the hearing on the motion. This court simply cannot perfect Defendant's appeal by inferring from the record that Defendant abandoned the motion. See Bailey, 694 P.2d at 1044.

Accordingly, Defendant's appeal is dismissed without prejudice to an appeal from a final order that disposes of his motion for a new trial.

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Norman H. Jackson,

Presiding Judge

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Russell W. Bench, Judge

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Gregory K. Orme, Judge