Opinion
Case No. 20041116-CA.
Filed February 17, 2005. (Not For Official Publication).
Appeal from the Fifth District, Cedar City Department, The Honorable J. Philip Eves.
J. Bryan Jackson, Cedar City, for Appellant.
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee.
Before Judges Greenwood, Jackson, and Thorne.
MEMORANDUM DECISION
Danny Lee appeals from his conviction of driving under the influence of alcohol, a third degree felony, and leaving the scene of an accident, a class C misdemeanor. This is before the court on its own motion for summary disposition based on an untimely notice of appeal. The State filed a motion in support of dismissing this appeal for lack of jurisdiction. Lee filed an untimely response.
Lee's sentence was entered on October 14, 2004. His notice of appeal was not filed with the district court until December 27, 2004. In the interim, a notice of appeal was filed with this court on November 1, 2004.
To perfect an appeal, a notice of appeal "shall be filed with the clerk of the trial court within 30 days after the date of entry of judgment." Utah R. App. 4(a). "In determining whether a notice of appeal is timely filed and establishes jurisdiction in an appellate court, this court must be bound by the filing date indicated on the notice of appeal transmitted to it by the trial court." In re M.S., 781 P.2d 1287, 1288 (Utah Ct.App. 1989) (per curiam). Because the notice of appeal was filed in the trial court after the thirty-day time frame had elapsed, the notice was untimely and this court therefore lacks jurisdiction. See State v. Bowers, 2002 UT 100, ¶ 5, 57 P.3d 1065 (noting the "30-day period for filing notice of appeal in a criminal case is jurisdictional"). The failure to file a timely notice of appeal "is a jurisdictional failure requiring dismissal of the appeal."Id.
Lee argues that this court should accept the notice as timely as an equitable solution, or alternatively, that this court should grant an extension in which to file the appeal. However, this court lacks the authority to grant either option. The "exclusive procedure" for extending the time for filing a notice of appeal is provided in rule 4(e) of the Utah Rules of Appellate Procedure. In re M.S., 781 P.2d at 1288; see Utah R. App. P. 4(e). Rule 4(e) provides time frames that must be followed, and requires relief to be sought in the district court. See Utah R. App. P. 4(e). Moreover, under rule 2 of the Utah Rules of Appellate Procedure, this court is prohibited from suspending the time frames set forth in rules 4(a), 4(b), or 4(e). See Utah R. App. P. 2. This court must strictly abide by the time frames provided by rule.
Although this direct appeal is now foreclosed, Lee has a mechanism for relief as set out in State v. Johnson, 635 P.2d 36 (Utah 1981). Johnson provides procedures for relief in the district court possibly renewing the time for a direct appeal where a defendant has lost his opportunity to appeal through no fault of his own. See id. at 37.
Accordingly, this appeal is dismissed.
Pamela T. Greenwood, Judge, Norman H. Jackson, Judge and William A. Thorne Jr., Judge.