State of Utah v. Brown

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Chey Brown,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030724-CA
 

F I L E D
(January 23, 2004)
 

2004 UT App 10

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Second District, Farmington Department

The Honorable Michael G. Allphin

Attorneys: Chey Brown, Draper, Appellant Pro Se

Mark L. Shurtleff and Matthew D. Bates, Salt Lake City, for Appellee

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Before Judges Billings, Davis, and Thorne.

PER CURIAM:

This case is before the court on a sua sponte motion for summary dismissal for lack of jurisdiction. The State urges dismissal. Appellant Chey Brown did not reply to the motion.

Pursuant to a plea bargain, Brown entered guilty pleas to two third degree felony charges. The court entered its judgment and sentence on January 23, 2002, placing Brown on probation. On June 10, 2002, the district court terminated his probation as unsuccessful and entered a judgment sentencing Brown to serve his suspended prison sentence. Brown did not file a timely motion to withdraw his guilty pleas and did not file a timely notice of appeal from either the original judgment and sentence or the judgment entered after termination of probation.

A notice of appeal must be filed within thirty days of entry of a final appealable judgment. See Utah R. App. P. 4(a). In a criminal case, the sentence itself is the final appealable order. See State v. Gerrard, 584 P.2d 885, 886 (Utah 1978). The notice of appeal in this case was filed on September 3, 2003, well beyond the time for a direct appeal from either the original judgment or the judgment entered after termination of probation. When a notice of appeal is untimely, this court lacks jurisdiction to consider the appeal. See Serrato v. Utah Transit Auth., 2000 UT App 299,¶17, 13 P.3d 616. Accordingly, we lack jurisdiction to consider an appeal of the conviction or sentence.

Brown's appeal is purportedly taken from an order entered in September, 2003, which he contends denied his request for transcripts to be prepared at State expense. No such order appears in the record, although the court sent a letter advising Brown that he was not entitled to transcripts in this case. Accordingly, this appeal is not taken from a final appealable order. Even assuming that such an order existed, there is no pending appeal or pending case in which a request for a transcript could be pursued.

Once a court has determined that it lacks jurisdiction, it "retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1998). Accordingly, we dismiss the appeal.

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Judith M. Billings,

Presiding Judge

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James Z. Davis, Judge

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William A. Thorne Jr., Judge