State v. Parker

• Decision Date: 16 March 1994
• Docket Number: No. 920732-CA,920732-CA
• Citation: 872 P.2d 1041
• Parties: STATE of Utah, Plaintiff and Appellee, v. Todd Allen PARKER, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 1041

872 P.2d 1041

STATE of Utah, Plaintiff and Appellee, v. Todd Allen PARKER, Defendant and Appellant.

No. 920732-CA.

Court of Appeals of Utah.

March 16, 1994.

Certiorari Denied Aug. 24, 1994.

Joan C. Watt (argued), Lisa J. Remal, Salt Lake Legal Defender Ass'n, Salt Lake City, for appellant.

Jan Graham, State Atty. Gen., J. Kevin Murphy, Asst. Atty. Gen. (argued), Salt Lake City, for appellee.

Before BILLINGS, GREENWOOD and DAVIS, JJ.

OPINION

BILLINGS, Presiding Judge:

Defendant Todd Allen Parker appeals the trial court's order denying return of money he paid to the Fremont Center, as a condition of his probation, after his conviction was reversed and vacated. We affirm. Both Judge Davis and Judge Greenwood concur in sections I. and II.A. of this opinion. However, neither Judge Davis nor Judge Greenwood concurs in section II.B. and thus, Judge Davis's opinion is the majority opinion on the return of fees.

FACTS

In September of 1990, defendant was charged with three counts of burglary. He pled not guilty and moved to suppress all evidence seized following his arrest. The trial court denied the motion to suppress, and after a bench trial, convicted him on all three counts.

Defendant was sentenced to serve one to fifteen years at the Utah State Prison concurrently and to pay a fine of $10,000, on each count. The trial judge stayed the prison sentence and placed defendant on eighteen months probation. As conditions of his probation, defendant was required to pay a fine of $800 plus a twenty-five percent surcharge, make full restitution, complete a high school education program, complete a program at Salt Lake County Mental Health, and attend the Fremont Center, a secure residential facility run by the State Department of Corrections for parolees and probationers. Defendant paid the fine, made restitution, and attended the Fremont Center. As a condition of participating in the Fremont program, he was required to pay a monthly fee to the Center.

Defendant successfully appealed his burglary convictions. This court reversed and remanded in State v. Parker, 834 P.2d 592 (Utah App.1992), finding that the evidence supporting his convictions was obtained as the result of an unconstitutional arrest. Upon remand and pursuant to the State's motion, the trial court entered an order dismissing the criminal case against defendant on July 31, 1992, thereby vacating his convictions.

On August 20, 1992, twenty days after the order of dismissal, defendant filed a motion captioned "Motion for Return of Fine, Costs and Fees and Notice of Hearing." Defendant sought reimbursement for the fees and fines he paid following his conviction. The trial court ruled,

Based upon the defendant's motion for return of fines, costs and fees which was heard on the dates of September 4, 1992 and September 15, 1992, and good causes appearing; It is hereby ordered that fines shall be returned to the defendant but any money paid for rehabilitation will not be returned to the defendant.

It is from this order defendant now appeals.

The State argues as a threshold matter that this appeal should be dismissed for lack of jurisdiction. Specifically, the State claims that the original order dismissing the case against defendant was a final judgment from which defendant had ten days, under Rule 59(e) of the Utah Rules of Civil Procedure, in which he could move to amend that judgment. Alternatively, the State argues that defendant is not entitled to the return of the money he paid to the Fremont Center because the fees were paid to the state for treatment which he received.

Defendant responds that the trial court had jurisdiction over the motion under either Rule 22(e) of the Utah Rules of Criminal Procedure, which permits a court to "correct an illegal sentence ... at any time," or under Rule 60(b) of the Utah Rules of Civil Procedure, which permits post-judgment relief in specific circumstances. Further, he argues the fees he paid to the Fremont Center as a condition of his probation should be returned to him because they were paid incident to his conviction which has been vacated.

I. JURISDICTION

Defendant's motion captioned "Motion for Return of Fine, Costs and Fees and Notice of Hearing" was filed in the trial court twenty days after entry of the order of dismissal. The motion does not indicate which provision of the Utah Rules of Civil or Criminal Procedure authorizes the motion. The court's order, which returned the fines but denied the refund of fees paid to the Fremont Center, likewise fails to specify the procedural rule under which the court considered the motion. ¹

How defendant's motion is characterized determines this jurisdictional issue. If we treat the motion as one under Rule 59(e), to alter or amend the judgment, then it should not have been considered by the trial court because it was filed later than ten days after entry of the order. However, if we construe it as brought under either Rule 22(e) ² or under Rule 60(b), then the trial court properly considered the motion.

The portion of Rule 60(b) relevant to this appeal provides for relief from a final judgment:

On motion and upon such terms as are just, the court may in the furtherance of justice relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... or (7) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time and for reasons [under subsection] (1) ... not more than 3 months after the judgment, order, or proceeding was entered or taken.

Utah R.Civ.P. 60(b).

The fact that defendant did not label his motion a Rule 60(b) motion is not dispositive. See Kunzler v. O'Dell, 855 P.2d 270, 273 (Utah App.1993); Darrington v. Wade, 812 P.2d 452, 457 (Utah App.1991). In determining the character of a motion, the substance of the motion, not its caption, is controlling. Kunzler, 855 P.2d at 273; Darrington, 812 P.2d at 457. Furthermore, the trial court acted on the merits of the motion and thus de facto considered it as timely. See State v. Belgard, 830 P.2d 264, 266 (Utah 1992) (per curiam). We agree with defendant that consideration by the court of the return of fines and fees was the proper subject of a motion under either Rule 60(b)(1) or 60(b)(7), ³ and not under Rule 59(e).

A. Rule 60(b)(1)

This court has previously said:

In order for a party to be relieved from judgment under Rule 60(b)(1), the party must demonstrate not only that the judgment resulted from mistake, inadvertence, surprise, or excusable neglect, but also that the motion to set aside was timely, and that there exist issues worthy of adjudication.

Richins v. Delbert Chipman & Sons Co., 817 P.2d 382, 387 (Utah App.1991).

The trial court appropriately considered defendant's motion under subsection (1) because the order of dismissal should have dealt with defendant's sentence, and failure to do so was an inadvertence. See Thomas A. Paulsen Co. v. Industrial Comm'n, 770 P.2d 125, 130 (Utah 1989) (analogizing workers' compensation statute to Rule 60(a), the court found the administrative law judge's failure to state liability determination in clear terms was inadvertence). Defendant's motion was timely under Rule 60(b)(1) as it was filed well within the three-month period; furthermore, it involved issues worthy of adjudication.

B. Rule 60(b)(7)

Alternatively, subsection (7), the residuary clause of Rule 60(b), would also have allowed the court to consider defendant's motion. Subsection (7) allows for relief for "any other reason justifying relief from the operation of the judgment."

Two Utah cases, similar to the case at hand, have treated motions as if they were made pursuant to Rule 60(b)(7). First, in Kunzler v. O'Dell, 855 P.2d 270 (Utah App.1993), O'Dell filed a post-judgment motion for "clarification of the judgment" because in its judgment, the court described a fence line in a manner inconsistent with its legal ruling. After a hearing, a new judgment was entered. Id. at 272. Kunzler argued that the new judgment could only have been proper if brought pursuant to Rule 59 or Rule 60. Because no motion was filed under either of these rules, he claimed procedural error. Id. at 273. This court found the motion sufficient to invoke Rule 60(b), thus affirming the trial court's judgment clarifying its original order and stating, "When the substance of a mislabeled motion is in essence the same as a motion under Rule 60(b), courts can use the rule to grant relief." Id. at 274.

Similarly, in Darrington v. Wade, 812 P.2d 452, 457 (Utah App.1991), the trial court lifted a default judgment in favor of Darrington and entered summary judgment for Wade in a personal injury action. Id. at 455. Darrington claimed that once the default judgment was entered it could be vacated only in accordance with Rule 60(b), upon a proper motion to set aside the judgment. Id. at 456. Wade never filed a formal motion asking the court to set aside the default judgment, as required by Rule 60(b); however, he did file a timely objection to the proposed order prepared by Darrington's counsel, and also filed additional memoranda supplementing the initial objections. Id. at 455. This court found:

In this case, Wades' [sic] supplemental statement of objections, though clearly mislabeled, was the functional equivalent of a Rule 60(b) motion to set aside the judgment. The statement was filed in contemplation of Rule 60(b), and contained the same kinds of arguments and assertions one would normally expect to find in a motion to set aside the judgment. Most importantly, the trial court treated it as such a motion.

Id. at 457. ⁴

In the instant case, defendant's motion is captioned "Motion for Return of Fine, Costs and Fees and Notice of Hearing." The body of the motion states:

COMES NOW the defendant above named by and through his attorney of...