State of Utah v. Messer Jr.

State v. Messer Jr.

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

William A. Messer Jr.,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020971-CA
 

F I L E D
(January 29, 2004)
 

2004 UT App 14

 

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Fifth District, Cedar City Department

The Honorable James L. Shumate

Attorneys: Glenn D. Halterman, Cedar City, for Appellant

Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Billings, Davis, and Thorne.

PER CURIAM:

This case is before the court on the State's motion for summary dismissal for lack of jurisdiction due to an untimely notice of appeal. See Utah R. App. P. 10. Appellant William Messer filed two appeals related to the same trial court case and resulting conviction. The other case (number 20010978-SC) was dismissed by the supreme court for failure to file a docketing statement. Messer's notice of appeal, filed December 3, 2001, was timely as to his Sentence, Judgment, and Conviction because it was filed after announcement of sentence, but prior to issuance of a formal Sentence, Judgment, and Conviction and is, therefore, treated as having been filed on the day of issuance of the formal Sentence, Judgment, and Conviction. See Utah R. App. P. 4(c).

However, the notice of appeal that initiated this appeal was filed November 7, 2002, and purported to appeal "the denial of all pro-se post conviction motions on September 16, 2002." Assuming the September 16 order was final and appealable, the notice of appeal was filed untimely from that order.

Messer's response to the State's motion for summary dismissal seems to confuse the two cases in claiming that "the court does not automatically lose jurisdiction over a case merely for failure to file a docketing statement in a timely manner." When a notice of appeal is untimely, this court does not have jurisdiction and must dismiss the appeal. See Serrato v. Utah Transit Auth., 2000 UT App 299,¶17, 13 P.3d 616; Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1998).

Messer encourages this court to "take up this matter under Rule 23(b) for the determination of ineffective assistance of counsel" if the notice of appeal is determined to be untimely filed. Rule 23(b) provides the means by which this court may remand a case for further development of the record with regard to counsel's alleged ineffective assistance if the record is inadequate because of counsel's ineffectiveness. To remand, this court must have proper jurisdiction and a proper request, meeting the requirements of 23(b)must be made. We do not have jurisdiction and a proper request has not been made.(1)

Because the notice of appeal was untimely and this court does not have jurisdiction, the appeal is summarily dismissed.

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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

1. The only possible remedy, if a proper timely appeal was not taken because of counsel's ineffective assistance, would be a petition for extraordinary relief pursuant to rule 65C of the Utah Rules of Civil Procedure.