State v. Valdez

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Carlos Mario Valdez,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20050069-CA
 

F I L E D
(April 14, 2005)
 

2005 UT App 175

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Second District, Farmington Department

The Honorable Darwin C. Hansen

Attorneys: Hakeem Ishola, Salt Lake City, for Appellant

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

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Before Judges Davis, Jackson, and Thorne.

PER CURIAM:

    This case is before the court on a sua sponte motion for summary dismissal. Although the motion gave notice that this appeal may be dismissed if a response was not filed, Carlos Mario Valdez (Valdez) has not responded.

    On November 24, 2004, Valdez entered a guilty plea to one count of burglary, a third degree felony in violation of Utah Code section 76-6-202. See Utah Code Ann. § 76-6-202 (2003). On January 18, 2005, the district court entered its sentence, judgment, and commitment. On January 21, 2005, Valdez moved the district court to withdraw his guilty plea, and filed a notice of appeal.

    This appeal is governed by Utah Code section 77-13-6, which provides that a guilty plea "may be withdrawn only upon leave of the court and a showing that it was not knowingly and voluntarily made." Id. § 77-13-6(2)(a) (Supp. 2004). A request to withdraw a plea "shall be made by motion before sentence is announced." Id. § 77-13-6(2)(b). If a defendant fails to make a timely request to withdraw a plea, any challenge to the plea must be made pursuant the Post-Conviction Remedies Act and rule 65C of the Utah Rules of Civil Procedure. See id. § 77-13-6(2)(c).

    The timely filing of a notice to withdraw a plea is jurisdictional. See State v. Reyes, 2002 UT 13,¶¶3-4, 40 P.3d 630. Failure to file a timely motion to withdraw a guilty plea "extinguishes a defendant's right to challenge the validity of the guilty plea on appeal." Id. at ¶3.

    Because Valdez failed to file a timely motion to withdraw his guilty plea, this court lacks jurisdiction to consider Valdez's appeal. See id. at ¶¶3-4. 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. 1989).

    We therefore dismiss Valdez's appeal.

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James Z. Davis, Judge

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge