Opinion
Case No. 20001040-CA.
Filed May 17, 2001. (Not For Official Publication)
Appeal from the Seventh District, Monticello Department, The Honorable Mary L. Manley.
Dennis Boarts, Draper, Appellant Pro Se.
L. Robert Anderson and Daniel G. Anderson, Monticello, for Appellee.
Before Judges Greenwood, Billings, and Davis.
MEMORANDUM DECISION
Appellant Dennis Boarts appeals orders denying a petition for post-conviction relief filed pursuant to Rule 65C of the Utah Rules of Civil Procedure. This case is before the court on a sua sponte motion for summary disposition.
Boarts was convicted in the Monticello Justice Court of Driving Under the Influence. Boarts was again convicted following a trial de novo in district court. Boarts filed a petition for post-conviction relief collaterally challenging his conviction and stating that he had no right of direct appeal under Utah Code Ann. § 78-5-120 (Supp. 2000). On July 12, 2000, the district court denied the petition under Rule 65C(g) as frivolous on its face. In an order dated September 11, 2000, the district court (1) vacated its July 12, 2000 order; (2) dismissed the petition for failure to pay the filing fee; and (3) ruled that the petition could be refiled with the appropriate filing fee. Boarts filed a notice of appeal taken from both the July 12, 2000 and September 11, 2000 orders.
The district court entered an additional order on October 11, 2000, construing the notice of appeal as an attempt to appeal the judgment following the trial de novo and purportedly rejecting the appeal. There is no record support for the district court's characterization of the appeal. The notice of appeal specifically identifies the orders denying post-conviction relief, and Boarts conceded in his petition that he had no right of direct appeal. See Utah Code Ann. § 78-5-120 (Supp. 2000) (stating district court's decision following trial de novo in case originating in justice court is final unless district court rules on constitutionality of statute or ordinance); see also Dean v. Henriod, 1999 UT App 50, ¶ 8, 975 P.2d 946 (stating petition for extraordinary relief is "procedurally correct" to obtain review of district court decision where section 78-5-120 precludes appeal).
Because the July 12, 2000 order was vacated, only the September 11, 2000 order can be appealed. That order, in effect, dismissed the petition without prejudice and allowed refiling if the petition was accompanied by the required filing fee. In addition, an incarcerated petitioner may also provide an affidavit in accordance with Utah Code Ann. § 21-7-4.5 (1998) and obtain a determination whether the petitioner is entitled to a reduced filing fee.
If the district receives an affidavit, it must undertake the analysis required under section 21-7-4.5. See Straley v. Halliday, 959 P.2d 645 (Utah Ct.App. 1998) (holding district court erred in dismissing petition without undertaking analysis of affidavit alleging indigency required by section 21-7-4.5).
We affirm the September 11, 2000 order insofar as the petition was dismissed without prejudice to its refiling with the required filing fee or an affidavit initiating procedures under Utah Code Ann. § 21-7-4.5. This decision is similarly without prejudice to the petition's refiling in district court. We reaffirm our denial of Boarts's request to consolidate this case with our closed case No. 20001059-CA.
Pamela T. Greenwood, Presiding Judge.
Judith M. Billings, Judge and James Z. Davis, Judge.