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West Valley City v. Kelly. Filed March 18, 1999

IN THE UTAH COURT OF APPEALS ----ooOoo---West Valley City, Plaintiff and Appellee, v. Liam Brent Kelly, Defendant and Appellant. MEMORANDUM DECISION (Not For Official Publication) Case No. 990004-CA FILED March 18, 1999 1999 UT App 082 ----Third District, West Valley Department The Honorable Ann Boyden Attorneys: Liam Brent Kelly, Salt Lake City, Appellant Pro Se J. Richard Catten, West Valley City, for Appellee ----Before Judges Greenwood, Billings, and Jackson. PER CURIAM: Appellant Liam Brent Kelly seeks to appeal his convictions following a jury trial of Simple Assault, a class B misdemeanor, and Criminal Mischief, a class C misdemeanor. We dismiss the appeal for lack of jurisdiction. The trial court entered its final judgment and sentence on September 2, 1998. Kelly filed a motion seeking an extension to file a notice of appeal, which was denied in an order entered on November 6, 1998. Kelly filed a notice of appeal on December 21, 1998, which he characterized as a notice of his appeal from the order denying an extension of the time to file a notice of appeal. He has since filed several motions in this court, and has also filed a document captioned "Petition for the Order of a Writ of Habeas Corpus Ad Testificum to Issue Forth," which seeks an order of this court to allow him to appear and argue the merits of the appeal. A court's initial inquiry should always be to determine whether it has jurisdiction over the case. See Varian-Eimac v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989). "When a matter is outside the court's jurisdiction it retains only the authority to dismiss the action." Id. Based upon our determination that we lack jurisdiction over the appeal, we do not consider the motions filed by appellant. Kelly did not initiate a timely appeal from the September 2, 1998 judgment. He filed a motion seeking an extension of the time to file a notice of appeal under Utah R. App. P. 4(e). The motion was received in the trial court on November 4, 1998, and denied on November 6, 1998. The basis for the denial was two-fold: first, Kelly had not demonstrated excusable neglect as a basis for the extension, and second, the motion was not timely filed under Utah R. App. P. 4(e). Kelly filed a notice of appeal from this order on December 21, 1998. It is questionable that an order denying a motion to extend the time for appeal is itself an appealable order. However, even assuming the order is appealable, no timely appeal was initiated from the November 6, 1998 order. The notice of appeal was filed

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West Valley City v. Kelly. Filed March 18, 1999

in the trial court on December 21, 1998, more than thirty days after the order's entry. See Utah R. App. P. 4(a). We note that the notice was signed and dated December 16, 1998, foreclosing any argument that the notice of appeal was timely under the prison delivery rule, which allows filing by mailing a notice of appeal "on or before the last day for filing." Utah R. App. P. 4(f). No timely appeal could have then been initiated from the order denying an extension of time to appeal from the convictions. To the extent Kelly seeks to appeal from his convictions, we also lack jurisdiction over any appeal from the September 2, 1998 judgment. Kelly did not file a timely notice of appeal, and the trial court denied his motion to extend the appeal time based upon a determination that the motion was both untimely and without merit. Kelly contends the motion to extend time for appeal was timely filed under the prison delivery rule because it was mailed within the time allowed for the motion under Utah R. App. P. 4(e). Utah R. App. P. 4(f) provides, in part, that a "notice of appeal is timely filed if it is deposited in the institution's internal mail system on or before the last day of filing." The rule is limited in its application to a notice of appeal and does not apply to other motions. In addition, the trial court also considered the merits of the untimely motion and denied it on the merits. Having considered any basis for this court's jurisdiction that was, or could have been, asserted, we conclude that no timely appeal was initiated from the conviction or from the denial of an extension of time to appeal from the conviction. Accordingly, we dismiss the appeal for lack of jurisdiction.

______________________________ Pamela T. Greenwood, Associate Presiding Judge

______________________________ Judith M. Billings, Judge

______________________________ Norman H. Jackson, Judge

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