Opinion
Case No. 20050155-CA.
Filed June 3, 2005. (Not For Official Publication).
Appeal from the First District, Logan Department, 021100187, The Honorable Thomas L. Willmore.
Mark McBride, Woodland Hills, California, for Appellant.
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee.
Before Judges Billings, Jackson, and Orme.
MEMORANDUM DECISION
Appellant Sydney Arthur Wengreen appeals his conviction of aggravated sexual abuse of a child, a first degree felony. This case is before the court on a sua sponte motion for summary disposition.
These facts are not disputed. The district court entered its sentence and judgment on March 27, 2003. Wengreen filed a timely motion for new trial on April 7, 2003. On October 8, 2004, the district court entered a memorandum decision denying defendant's motion for new trial, which directed counsel for the State to "prepare an order conforming to this Memorandum Decision." On October 21, 2004, Wengreen filed a notice of appeal. On November 8, 2004, the district court entered its order denying Wengreen's motion for new trial. Wengreen did not file a new notice of appeal within thirty days of entry of that order, as required by rule 4(b) of the Utah Rules of Appellate Procedure. See Utah R. App. P. 4(b) (stating that a notice of appeal filed before entry of an order disposing of a timely motion for new trial is of no effect, and a new notice of appeal must be filed within thirty days of entry of the order disposing of the motion).
An earlier, untimely motion for new trial was filed before sentencing and does not affect our analysis.
Wengreen contends that his notice of appeal was timely because it was filed after the announcement of the decision on the motion for new trial in the memorandum decision, but before the entry of the final order. See Utah R. App. P. 4(c) ("Except as provided in paragraph (b) of this rule, a notice of appeal filed after the announcement of a decision . . . but before the entry of the . . . order of the trial court shall be treated as filed after such entry and on the day thereof."). This argument was specifically rejected by the majority decision in Swenson Associates Architects, P.C. v. State, 889 P.2d 415, 416-17 (Utah 1994), and Wengreen's reliance on a dissenting opinion in that case is misplaced. As noted in Swenson, the express language of rule 4(c) excludes from its operation cases where a timely post-judgment motion enumerated under rule 4(b) of the Utah Rules of Appellate Procedure has been filed. See id. at 416; see also Utah R. App. P. 4(c).
Wengreen next contends that the October 8, 2004 memorandum decision was a final, appealable order that completely resolved the motion for new trial. Ironically, he relies upon the language directing counsel for the State to prepare a further order as an indication of finality. This position is without merit. "[W]here further action is contemplated by the express language of the order, it cannot be a final determination susceptible of enforcement." State v. Leatherby, 2003 UT 2, ¶ 9, 65 P.3d 1180 (Utah 2003); see also Swenson, 889 P.2d at 417 (holding that a signed minute entry announcing a decision, but directing preparation of a further order, was not final and appealable).
Finally, Wengreen argues that equitable considerations support disposition of his case on the merits. Therefore, he requests the court to disregard the jurisdictional defect in 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. 1998).
To the extent that Wengreen claims he was denied his right to appeal through actions of former counsel, he must pursue his remedy in post-conviction proceedings. See State v. Johnson, 635 P.2d 36, 38 (Utah 1981).
We dismiss the appeal for lack of jurisdiction because a new notice of appeal was not filed within thirty days after the entry of the final order denying a timely motion for new trial.
WE CONCUR: Judith M. Billings, Presiding Judge, Norman H. Jackson, Judge, Gregory K. Orme, Judge.