Sandy City v. Walton

Sandy City v. Walton

IN THE UTAH COURT OF APPEALS

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Sandy City,
Plaintiff and Appellee,

v.

Bryan M. Walton,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20021076-CA
 

F I L E D
(August 28, 2003)
 

2003 UT App 296

 

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Third District, Sandy Department

The Honorable Denise P. Lindberg

Attorneys:
Jay L. Kessler, Salt Lake City, for Appellant

Patricia S. Cassell, Sandy, for Appellee

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Before Judges Davis, Greenwood, and Thorne.

PER CURIAM:

Bryan M. Walton appeals from a ruling denying his Motion to Set Aside Order on Hearing Dated May 21, 2002. Both parties seek summary disposition.

"The trial court is afforded broad discretion in ruling on a motion for relief from judgment under Utah R. Civ. P. 60(b), and its determination will not be disturbed absent an abuse of discretion." Birch v. Birch, 777 P.2d 114, 117 (Utah Ct. App. 1989).

Walton contends that his probation terminated by operation of law on February 28, 2002, two years after his original sentence, that it was not properly extended, and that all orders subsequent to that date are void. Sandy City seeks summary affirmance on grounds that Walton's probation was revoked as "unsuccessfully terminated" during the period from June 6, 2001 until its reinstatement for a twelve-month period by a signed order dated October 2, 2001. The claim is supported by the trial court record. In contrast, there is no support for Walton's claim that the court clerk entered the reinstatement of probation for twelve months by mistake. Walton did not appeal from the October 2, 2001 order, which was signed by the court. He also voluntarily dismissed his appeal from the June 6, 2001 order that revoked probation. At the conclusion of the May 21, 2002 hearing, the district court again revoked probation. Pursuant to stipulation between Walton and Sandy City, the court released him from jail and reinstated probation until May 2003 on condition that he vacate and sell the Sandy home.

The rule 60(b) motion, filed in August of 2002, collaterally challenged the October 2, 2001 order under the guise that any order entered as a result of the May 21, 2002 hearing was void because probation terminated by operation of law and was not properly extended. Walton did not appeal the October 2, 2001 order, or file a timely motion to set it aside. See Utah R. Civ. P. 60(b) (requiring motion to set aside judgment based on mistake to be filed within three months). The rule 60(b) motion filed ten months after entry of the October 2, 2001 order was untimely as a challenge to that order.

Walton also sought to set aside the June 13, 2002 order entered pursuant to stipulation after the May 2002 hearing, again based upon a claim that probation terminated two years after the original sentence. The claim is without merit. The court revoked probation on June 6, 2001, as recognized by Walton's appeal. The October 2, 2001 order reinstated probation for a twelve-month period. Probation violations occurring in the first five months of 2002 were within this extended period. Incredibly, Walton contended he was free to ignore the very conditions negotiated to obtain his release from jail following revocation of probation because he believed he was no longer restricted in use of the property.

The court's revocation of probation following the May 21, 2002 hearing was not void. Rather than appealing after entry of a written order on the bench ruling, Walton negotiated yet another settlement allowing him to continue on probation and requiring him to vacate the Sandy property, which he now seeks to avoid.

The district court did not abuse its discretion in denying the rule 60(b) motion. Accordingly, we grant Sandy City's motion

and affirm the judgment, and deny the counter-motion for summary reversal.

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James Z. Davis, Judge

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Pamela T. Greenwood, Judge

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I CONCUR IN THE RESULT:

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William A. Thorne Jr., Judge