State of Utah v. Stringham

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Kyle Kent Stringham,
Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)
 

Case No. 20020591-CA
 

F I L E D

(April 10, 2003)
 

2003 UT App 105

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Eighth District, Duchesne Department
The Honorable A. Lynn Payne

Attorneys: Julie George, Salt Lake City, for Appellant

Mark L. Shurtleff and Marian Decker, Salt Lake City, for Appellee

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Before Judges Jackson, Billings, and Bench.

PER CURIAM:

This case is before the court on Appellee's motion to dismiss for lack of jurisdiction because of an untimely notice of appeal. See Utah R. App. P. 10(a). The Judgment, Sentence, and Commitment in this case was entered on May 22, 2002. A motion to withdraw the guilty plea was filed on June 6, 2002, and an unsigned minute entry denying that motion was entered July 15, 2002.(1) A notice of appeal was filed on July 16, 2002.

Appellee contends that the notice of appeal was premature because Appellant appeals from an unsigned minute entry denying his motion to withdraw his plea. However, the notice of appeal was not premature; it was filed late. Appellant may not appeal a plea of guilty unless he moves to withdraw the plea in the trial court. See State v. Reyes, 2002 UT 13,¶10, 40 P.3d 630. However, the rule in effect at all times relevant to this appeal did not include a motion to withdraw a plea among those post-trial motions that toll the time for filing a notice of appeal.(2) See Utah R. App P. 4(b) (enumerating those post-trial motions that toll the time for filing of the notice of appeal). For this reason, Appellant was required to file the notice of appeal within thirty days of entry of the Judgement, Sentence, and Commitment, to be timely. He did not do so.

Because the notice of appeal was untimely, we lack jurisdiction over the appeal. See Varian-Eimac, Inc. v. Lamareaux, 767 P.2d 569, 570 (Utah Ct. App. 1989) ("When a matter is outside the court's jurisdiction it retains only the authority to dismiss the action.").

We dismiss the appeal as untimely.

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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

1. The trial court minute entry erroneously characterizes the motion as one for a new trial, but no motion for a new trial was filed. Clearly, this was a clerical error and the docket should show Appellant's motion as a motion to withdraw his plea.

2. Utah R. App. P. 4(b) was amended in November of 2002 to include a motion to withdraw a plea among those post-trial motions that toll the time for filing the notice of appeal. However, our analysis is based upon the rule in effect at the time of this case.