20030480-CA | Utah Ct. App. | Sep 18, 2003
DRAPER CITY, Plaintiff and Appellee,
v.
Daniel ROPER, Defendant and Appellant.
Court of Appeals of Utah.
*632 Mary C. Corporon, Corporon & Williams PC, Salt Lake City, for Appellant.
L.G. Cutler, Salt Lake City, for Appellee.
Before JACKSON, P.J., and GREENWOOD and THORNE, JJ.
MEMORANDUM DECISION
PER CURIAM:
¶ 1 Defendant Daniel Roper appeals from the district court's order denying his motion to withdraw his guilty plea in abeyance, following a hearing de novo, in a case originating in justice court. This case is before the court on its own motion for summary dismissal for lack of jurisdiction. See Utah R.App. P. 10(e).
¶ 2 "A defendant convicted and sentenced in justice court is entitled to a hearing de novo in the district court ... if he files a notice of appeal within 30 days of ... an order denying a motion to withdraw a plea." Utah Code Ann. § 78-5-120(3)(d) (2002). "The decision of the district court is final and may not be appealed unless the district court rules on the constitutionality of a statute or ordinance." Id. § 78-5-120(7).
¶ 3 Defendant pleaded guilty in justice court, then filed a motion to withdraw his plea. After the justice court denied his motion, Defendant appealed the denial of his motion to the district court, which held a hearing de novo. Defendant did not raise and the district court did not rule on the constitutionality of a statute or ordinance. Therefore, the district court's decision may not be appealed to this court. See id.
¶ 4 Defendant contends that section 78-5-120(7) limits this court's review only when a defendant receives a trial de novo, which he did not receive. However, section 78-5-120 limits this court's review of a district court "decision" and makes no distinction between a decision in a trial and a decision in a hearing de novo. See id. § 78-5-120(1), (3), (7).
¶ 5 Defendant further contends that dismissal of this appeal will deny him a trial de novo and therefore will deny him his constitutional right to an appeal. "`[T]he right to an "appeal" from a court not of record is satisfied by provision for a trial de novo in a court of record.'" Dean v. Henriod, 1999 UT App 50" court="Utah Ct. App." date_filed="1999-02-25" href="https://app.midpage.ai/document/dean-v-henriod-1199577?utm_source=webapp" opinion_id="1199577">1999 UT App 50, ¶ 9, 975 P.2d 946 (quoting Monticello City v. Christensen, 788 P.2d 513" court="Utah" date_filed="1990-03-02" href="https://app.midpage.ai/document/city-of-monticello-v-christensen-1293366?utm_source=webapp" opinion_id="1293366">788 P.2d 513, 516 (Utah 1990)). In the present case, Defendant appealed the justice court's denial of his motion to withdraw his plea to the *633 district court. The district court held a hearing de novo on Defendant's motion to withdraw his plea. Therefore, any right Defendant had to appeal the denial of his motion to withdraw his plea by the justice court, a court not of record, was satisfied by the hearing de novo in the district court, a court of record. Cf. id. Moreover, Defendant could have sought a trial de novo by filing a notice of appeal within thirty days of entering his plea. See Utah Code Ann. § 78-5-120(1)(b). However, Defendant filed a motion to withdraw his plea in the justice court, then appealed the justice court's denial of his motion to the district court.
¶ 6 Because the district court did not rule on the constitutionality of a statute or ordinance in the hearing de novo, this court lacks jurisdiction to consider Defendant's appeal. "When a matter is outside the court's jurisdiction it retains only the authority to dismiss the [matter]." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569" court="Utah Ct. App." date_filed="1989-01-13" href="https://app.midpage.ai/document/varian-eimac-inc-v-lamoreaux-1247226?utm_source=webapp" opinion_id="1247226">767 P.2d 569, 570 (Utah Ct. App.1989).
¶ 7 Accordingly, Defendant's appeal is dismissed.