Orem City v. Osborne

IN THE UTAH COURT OF APPEALS
 

----ooOoo----

Orem City,

Plaintiff and Appellee,

v.

David M. Osborne,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040374-CA
 

F I L E D
(March 24, 2005)
 

2005 UT App 148

-----

Fourth District, Orem Department

The Honorable John C. Backlund

Attorneys: David M. Osborne, Gunnison, Appellant Pro Se

-----

Before Judges Davis, Jackson, and Thorne.

PER CURIAM:

    David M. Osborne appeals the March 25, 2004 ruling denying his motion to vacate his conviction and sentence. This case is before the court on a sua sponte motion for summary disposition for lack of jurisdiction. Osborne did not file a response to the motion.

    The time for filing a notice of appeal from the March 25, 2004 ruling expired on Monday, April 26, 2004. Osborne's notice of appeal was filed on May 10, 2004, more than thirty days after entry of the ruling that he seeks to appeal. Generally, a notice of appeal must be filed within thirty days after entry of the judgment being appealed. See Utah R. App. P. 4(a). Although rule 4(f) of the Utah Rules of Appellate Procedure contains an exception to the general rule applicable to notices of appeal filed by an inmate confined to a correctional institution, neither the district court record, nor the file on appeal, contains any "notarized statement or written declaration setting forth the date of deposit [in the correctional institution's internal mail system] and stating that first-class postage has been prepaid." Utah R. App. P. 4(f). In the absence of proof of compliance with the prerequisites of rule 4(f), we cannot apply the exception contained in that rule.

    Having concluded that we lack jurisdiction over this untimely appeal, we retain "only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989). Accordingly, we dismiss the appeal.

______________________________

James Z. Davis, Judge

______________________________

Norman H. Jackson, Judge

______________________________

William A. Thorne Jr., Judge