State v. Leatherbury, 20010424.
| Decision Date | 11 February 2003 |
| Docket Number | No. 20010424.,20010424. |
| Citation | 65 P.3d 1180 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Charles K. LEATHERBURY, Defendant and Petitioner. |
| Court | Utah Supreme Court |
Mark Shurtleff, Utah Att'y Gen., Kris C. Leonard, Asst. Att'y Gen., for plaintiff.
Joan C. Watt, Daniel M. Torrence, Salt Lake, for defendant.
On Certiorari to the Utah Court of Appeals
¶ 1 We granted Charles Leatherbury's petition for certiorari to review the court of appeals' decision in State v. Leatherbury, 2001 UT App 113U, 2001 WL 333079. The court of appeals held that it had appellate jurisdiction of the case. It also reversed the trial court's order of dismissal, which was premised on section 77-29-1 of the Utah Code. We affirm.
¶ 2 Leatherbury was charged by information with failing to respond to a police officer's signal to stop, possession of drug paraphernalia, reckless driving, and other charges related to his alleged participation in a police chase on January 14, 1999. The information was authorized for presentment and filing by the Salt Lake County District Attorney's Office on February 2, 1999, sworn to a magistrate on February 12, 1999, and filed with the clerk of the Third District Court on March 26, 1999.
¶ 3 On January 29, 1999, Leatherbury, then an inmate at the Utah State Prison, signed a form entitled "Notice and Request for Disposition of Pending Charge(s)" requesting final disposition of any charges pending in the Third District Court related to his "fleeing a police officer." The request was signed as received by the appropriate prison official on February 8, 1999 and forwarded to the Salt Lake County District Attorney's Office. This form purportedly satisfies the requirements of section 77-29-1 of the Utah Code and invokes Leatherbury's right to be tried within 120 days of the request.
¶ 4 On June 10, 1999, at the final pretrial conference, Leatherbury filed a motion to dismiss arguing that the 120 day period for bringing him to trial had expired on June 8, 1999 and that the charges must be dismissed. The State argued in response that Leatherbury's request for disposition was premature and of no effect because no information was pending against Leatherbury at the time of its preparation. At a hearing held on June 21, 1999, the parties argued the motion and the trial court indicated its intention to dismiss the case. However, the court ordered Leatherbury's attorney to prepare findings of fact and conclusions of law ("findings"). The court's intention to dismiss the case was memorialized in a signed minute entry.
¶ 5 On July 26, 1999, the trial court signed the findings, which had been prepared by Leatherbury's attorney. Nearly two months later, on September 17, 1999, the trial court signed an order of dismissal prepared by the State. The State filed its notice of appeal on September 23, 1999.
¶ 6 Before the court of appeals, Leatherbury argued that the court had no jurisdiction to hear the case because the notice of appeal was untimely filed. The State argued that the order of dismissal should be reversed because no information was pending, within the meaning of section 77-29-1, at the time Leatherbury made his request for disposition. In an unpublished memorandum decision, the court of appeals rejected Leatherbury's jurisdictional argument. It held that the State's notice of appeal was timely filed because the order of dismissal, not the signed minute entry of June 21, 1999, was the final order. State v. Leatherbury, 2001 UT App 113U, 2001 WL 333079. The court of appeals reversed the case on the merits holding that at the time of Leatherbury's request for disposition there was no pending information and his request had no legal effect. Id.
¶ 7 On certiorari review "we review the court of appeals' decision, not the opinion of the [trial] court." State v. Weeks, 2002 UT 98, ¶ 10, 458 Utah Adv. Rep. 3, 61 P.3d 1000. That decision is then reviewed for correctness. Id.
¶ 8 Leatherbury argues that the State's notice of appeal failed to vest the court of appeals with jurisdiction to hear the case because it came more than thirty days after entry of the final order. If the final order in the case was, as Leatherbury contends, either the signed minute entry or the findings, he is correct and we must vacate the court of appeals' decision. See Utah R. App. P. 4; State v. Bowers, 2002 UT 100, ¶ 5, 57 P.3d 1065 (). Thus, our resolution of this point turns on whether either document was a final appealable order, or whether, as the State argues, the final order did not come until the order of dismissal was signed and entered.
¶ 9 Although Leatherbury is correct that a signed minute entry may constitute a final appealable order, he is incorrect that the minute entry in this case was such an order. A signed minute entry will not be considered a final order where its language indicates that it is not intended as final. Swenson Assocs. Architects, P.C. v. State ex rel. Div. of Facilities Constr., 889 P.2d 415, 417 (Utah 1994). Thus, where further action is contemplated by the express language of the order, it cannot be a final determination susceptible of enforcement. The court of appeals correctly concluded that the signed minute entry's requirement that Leatherbury's counsel "prepare Findings of Fact and Conclusions of Law" indicated that the trial court did not intend the minute entry as a final order. Leatherbury, 2001 UT App 113U, 2001 WL 333079. Further, Leatherbury's argument that the findings constituted a final order is also incorrect. The findings merely explain the trial court's rationale for and intent to dismiss the case, and contained no order. Thus, the final order in this case was the order of September 17, 1999, which incorporated the previously entered findings of fact and conclusions of law and specifically ordered dismissal of the charges against the defendant. As a result, the State's notice of appeal was timely filed, and the court of appeals had jurisdiction to hear the case.
¶ 10 Leatherbury would have us reverse the court of appeals' determination that there was no information pending against him at the time of his request for disposition under section 77-29-1 of the Utah Code. He argues that an information is pending once it is signed by a prosecuting attorney, even before filing with the court. We disagree.
¶ 11 Section 77-29-1 of the Utah Code provides:
(1) Whenever a prisoner is serving a term of imprisonment in the state prison ... and there is pending against the prisoner in this state any untried ... information, and the prisoner shall deliver to the warden... a written demand specifying the nature of the charge and the court wherein it is pending and requesting disposition of the pending charge, he shall be...
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