State v. Stone

State v. Stone

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Todd Stone,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030334-CA
 

F I L E D
(December 26, 2003)
 

2003 UT App 449

 

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Third District, Salt Lake Department

The Honorable Joseph C. Fratto

The Honorable Michael K. Burton

Attorneys: Todd Stone, Salt Lake City, Appellant Pro Se

David E. Yocom and Martin Verhoef, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Davis.

PER CURIAM:

Todd Stone appeals his conviction for violation of a protective order, a class A misdemeanor. This case is before the court on a sua sponte motion for summary dismissal. The sole issue before the court is whether this court has jurisdiction to consider the appeal.(1)

On April 18, 2002, Stone entered a guilty plea to violation of a protective order. The district court entered its judgment and sentence on July 15, 2002, which included an order to pay restitution in the amount of $66.50. The judgment and sentence allowed Stone until July 19, 2002 to file any objection to the restitution amount. Stone filed a timely objection, which was denied in an unsigned minute entry.

In a criminal case, it is "the sentence itself which constitutes a final judgment from which the appellant has the right to appeal." State v. Bower, 2002 UT 100,¶4, 57 P.3d 1065; see State v. Gerrard, 584 P.2d 885, 886 (Utah 1978). The "30-day period for filing a notice of appeal in a criminal case . . . is jurisdictional and cannot be enlarged by this Court." State v. Johnson, 635 P.2d 36, 37 (Utah 1981). In addition, where the conviction is based upon a guilty plea, a defendant must file a timely motion to withdraw a guilty plea in order "to challenge the validity of the guilty plea on appeal." State v. Reyes, 2002 UT 13,¶3, 40 P.3d 630. The "failure to do so extinguishes a defendant's right to challenge the guilty plea on appeal." Id.

Because Stone's notice of appeal was not filed until over eight months after entry of the final judgment and sentence, we lack jurisdiction over the appeal from the conviction. In addition, because the conviction was based upon a guilty plea that was not challenged in a timely motion to withdraw, we could not consider the challenge even if a timely notice of appeal had been filed.

The record does not include a signed order denying the objection to the restitution amount, which was filed within the time allowed by the judgment and sentence. Insofar as the appeal seeks to challenge the amount of restitution, we dismiss the appeal because it is not taken from a final appealable order. Our dismissal of this portion of the appeal is without prejudice to a timely appeal taken only from a signed order denying the objection to restitution. See Bower, 2002 UT 100 at ¶4 (concluding operative date for appeal of conviction itself is entry of sentence).

We dismiss the appeal for lack of jurisdiction.

______________________________

Judith M. Billings,

Associate Presiding Judge

______________________________

Russell W. Bench, Judge

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James Z. Davis, Judge

1. This appeal does not encompass issues pertaining to any related cases, including issues regarding (1) divorce proceedings; (2) any proceedings resulting in issuance of the protective order; or (3) the civil post-conviction petition initiated after this appeal was filed.