State of Utah v. White

IN THE UTAH COURT OF APPEALS

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

James Benjamin White,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20030124-CA

F I L E D
(October 17, 2003)

2003 UT App 342

-----

Third District, Salt Lake Department

The Honorable William W. Barrett

Attorneys: James Benjamin White, Limon, Colorado, Appellant
Pro Se

Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee

-----

Before Judges Jackson, Bench, and Orme.

PER CURIAM:

Appellant James Benjamin White appeals the denial of a motion to dismiss based upon an alleged failure to comply with the Interstate Agreement on Detainers. See Utah Code Ann. § 77-29-5 (1999). This appeal is before the court on a sua sponte motion for summary disposition.

The district court denied the motion to dismiss on the ground that the State of Utah has not lodged a detainer against White in the State of Colorado. The State raises the jurisdictional defect that denial of White's motion to dismiss was a interlocutory order that cannot be appealed prior to entry of the final judgment and sentence in the criminal case. See State v. Gerrard, 584 P.2d 885, 886 (Utah 1978) ("It is the sentence itself which constitutes a final judgment from which appellant has the right to appeal."). Based upon our review of the record, the State's argument is well-taken. No final judgment has been entered on the pending criminal charge. In addition, White did not seek or obtain permission to appeal from the interlocutory order denying his motion to dismiss. See Utah R. App. P. 5(a). Accordingly, the order may be reviewed only in an appeal at the conclusion of the case.

Based upon the absence of a final appealable order, we lack jurisdiction over the appeal. See Varian-Eimac, Inc. v. Lamoreaux, 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."). Accordingly, we dismiss the appeal for lack of jurisdiction, without prejudice to a timely appeal taken after the entry of final judgment.

______________________________

Norman H. Jackson,

Presiding Judge

______________________________

Russell W. Bench, Judge

______________________________

Gregory K. Orme, Judge