State v. Smith

State v. Smith

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Thomas Howard Smith,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040411-CA
 

F I L E D
(June 23, 2005)
 

2005 UT App 293

 

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Third District, Salt Lake Department, 991920225

The Honorable Michael K. Burton

Attorneys: Thomas Howard Smith, Vernal, Appellant Pro Se

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

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Before Judges Davis, Jackson, and Orme.

PER CURIAM:

    This case is before the court on the State's motion for summary dismissal for lack of jurisdiction.

    The district court conducted an evidentiary hearing on March 26, 2004 on an order to show cause why Appellant Thomas Howard Smith's probation should not be revoked. At the hearing's conclusion, the district court ordered his probation revoked and had Smith taken into custody. The court's order is contained in a document captioned "Minutes/Order to Show Cause," which ordered Smith "to serve the sentence as imposed in the original Sentence, Judgment and Commitment," with his commitment "to begin immediately." Accordingly, Smith was taken into the custody of the Salt Lake County Sheriff. The minutes were signed and dated by the court on March 26, 2004 and were docketed in the court's computerized docket on that date.

    Smith filed a notice of appeal in the district court on April 28, 2004. Based upon the entry of the judgment on March 26, 2004, the notice of appeal must have been filed in the district court not later than April 26, 2004. Although it appears that Smith's counsel incorrectly filed a notice of appeal directly in this court on April 26, 2004, the notice of appeal was not timely filed in the district court, as required by rule 4(a) of the Utah Rules of Appellate Procedure. See Utah R. App. P. 4(a) (requiring notice of appeal to be filed with clerk of the trial court within 30 days after the date of entry of the judgment or order appealed).

    Smith argues that the State's motion for summary disposition was filed late, so this court is not required "to use its permissive powers to dismiss for lack of jurisdiction." In addition, he contends that because this court did not sua sponte move to dismiss the appeal, jurisdiction has been perfected. Neither position is correct. It is well established that "a lack of jurisdiction may be raised by the court or either party at any time." A.J. MacKay Co. v. Okland Constr. Co., 817 P.2d 323, 325 (Utah 1991).

    A timely notice of appeal is a prerequisite to this court's jurisdiction. Appellant failed to file a timely notice of appeal in the district court; accordingly, we lack jurisdiction over the appeal. "If an appeal is not timely filed, this court lacks jurisdiction to hear the appeal." Serrato v. Utah Transit Auth., 2000 UT App 299,¶7, 13 P.3d 616. Once a court determines 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. 1989).

    We dismiss the appeal for lack of jurisdiction.

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James Z. Davis, Judge

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Norman H. Jackson, Judge

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Gregory K. Orme, Judge