State v. Harry

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IN THE UTAH COURT OF APPEALS ----ooOoo---State of Utah, Plaintiff and Appellee, v. Russ Harry, Defendant and Appellant. ) ) ) ) ) ) ) ) ) MEMORANDUM DECISION (Not For Official Publication) Case No. 20060935-CA F I L E D (December 14, 2006) 2006 UT App 505 ----Third District, Salt Lake Department, 051908113 The Honorable Deno Himonas Attorneys: Russ Harry, Salt Lake City, Appellant Pro Se Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee ----- Before Judges Bench, Greenwood, and Thorne. PER CURIAM: On September 12, 2006, a jury found Defendant guilty of driving under the influence of alcohol and drugs, a class B misdemeanor, and illegal possession of a controlled substance, a third degree felony. Sentencing was set for December 15, 2006. Harry filed a pro se notice of appeal seeking to appeal a judgment, which he claims was entered on September 12, 2006, finding him guilty of possession of a controlled substance. "In a criminal case, it is ' the sentence itself which constitutes the final judgment from which the appellant has the right to appeal.'" State v. Bowers, 2002 UT 100,¶4, 57 P.3d 1065 (quoting State v. Gerrard, 584 P.2d 885, 886 (Utah 1978)). Harry had not been sentenced when he filed the notice of appeal; therefore, the district court had not entered a final, appealable judgment. Accordingly, we lack jurisdiction to consider the appeal. Once a court determines that it lacks jurisdiction, it retains only the authority to dismiss the action. See VarianEimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989). We dismiss the appeal, without prejudice to a timely appeal filed after the entry of a final judgment and sentence. ______________________________ Russell W. Bench, Presiding Judge ______________________________ Pamela T. Greenwood, Associate Presiding Judge ______________________________ William A. Thorne Jr., Judge 20060935-CA 2

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