Opinion
Case No. 20080477-CA.
Filed February 26, 2009. Not For Official Publication
Appeal from the Fourth District, American Fork Department, 071101415 The Honorable Howard H. Maetani.
Steven B. Cummings, American Fork, Appellant Pro Se.
James H. Hansen and Timothy G. Merrill, Pleasant Grove, for Appellee.
Before Judges Bench, Davis, and McHugh.
MEMORANDUM DECISION
Steven B. Cummings appeals his conviction on a charge of disorderly conduct, an infraction. We affirm.
Cummings argues that the trial court lacked jurisdiction over him because the information was not served on him in accordance with the Utah Rules of Civil Procedure. However, the service rules of the Utah Rules of Civil Procedure do not apply to criminal actions. The rules of civil procedure apply in criminal proceedings only where there is no applicable criminal rule and the civil rule would not conflict with any statutory or constitutional requirement. See Utah R. Civ. P. 81(e). For criminal actions initiated by filing an information, other rules and statutes apply, precluding the application of the civil rules regarding service.
Cummings was first served with a citation on the day of the altercation. Instead of making an arrest, a peace officer "may issue and deliver" a citation for a misdemeanor or infraction. Utah Code Ann. § 77-7-18 (2008). The citation must include the name of the person cited, a brief description of the offense, the date and time when the offense occurred, the date of issuance, and the date and time for the person to appear in court. See id. § 77-7-20. Additionally, the citation must contain, essentially, a certificate of service, a certification above the signature line verifying that the officer served a copy of the citation on the defendant. See id.
A prosecution may proceed on a citation filed instead of an information when the defendant pleads guilty or no contest or agrees to forfeit bail. See id. § 77-7-21(1)(a). However, "[a]n information shall be filed and proceedings held in accordance with the Rules of Criminal Procedure and all other applicable provisions of this code if the person cited" pleads not guilty. Id. § 77-7-21(2)(b). The information filed as a result is an original action. See id. § 77-7-21(3)(a). Under Utah Code section 77-7-20(2)(j), the defendant will receive a copy of the information from the court at the appearance on the citation. See id. § 77-7-20(2)(j). See also Utah R. Crim. P. 7(e).
Cummings appeared in court as required by the citation. At his first appearance, the court provided him with a copy of the information filed to initiate the action against him on the charge of disorderly conduct. Cummings was properly served with the information in open court. His argument that the service was improper therefore has no merit.
Cummings also asserts that he was entitled to a preliminary hearing. However, no preliminary hearing was required because he was charged with an infraction. See Utah R. Crim. P. 7(h). On a defendant's first appearance in court, the court must inform the defendant of the charge against him and provide a copy of the information. See id. R. 7(e). Unless the charge is a felony, the court then "shall call upon the defendant to enter a plea." Id. R. 7(g). "If the plea is not guilty, a trial date shall be set." Id. R. 7(g)(2). Only if the defendant is charged with a felony is the court required to advise him or her of the right to a preliminary hearing and set a date unless waived. See id. R. 7(h).
Cummings also argues that he was entitled to additional discovery and responses to his demand for a bill of particulars. American Fork City (the City) provided a copy of its entire file to Cummings in court. The additional file on a prior closed case that Cummings sought is irrelevant to the disorderly conduct charge. Accordingly, Cummings received the discovery to which he was entitled.
Furthermore, Cummings was not entitled to responses to his bill of particulars. If an information lacks sufficient detail to enable a defendant to prepare a defense, "the defendant may file a written motion for a bill of particulars." Utah R. Crim. P. 4(e). Cummings did not move the court to direct a bill of particulars. Accordingly, his demand served directly on the City was inappropriate and ineffective.
Additionally, Cummings's bill of particulars was beyond the scope of a legitimate bill. "The request for and contents of a bill of particulars shall be limited to a statement of factual information needed to set forth the essential elements of the particular offense charged."Id. Most of Cummings's requests were irrelevant to the offense and sought legal conclusions. As a result, the requests were inappropriate.
Cummings further asserts that he was entitled to a witness list. Under rule 4(j) of the Utah Rules of Criminal Procedure, "[u]pon request the prosecuting attorney shall . . . furnish the names of other witnesses he proposes to call whose names are not [on the information]." Utah R. Crim. P. 4(j). Cummings did not request a witness list from the City. In his bill of particulars, he requested that the City identify all witnesses, but as noted above, the bill of particulars was not appropriate. Additionally, Cummings had access to the information. The identities of the police officer and the complaining witness were in the police report and available to Cummings, and the witnesses were on Cummings's own witness list. Cummings has shown no entitlement to a list nor any prejudice from not receiving a formal witness list prior to trial.
Cummings raises other issues which we find to be without merit. We do not address them further here. See Beehive Brick Co. v. Robinson Brick Co., 780 P.2d 827, 833 (Utah Ct.App. 1989) (noting the principle established in both civil and criminal cases that the court "need not analyze and address in writing each and every argument").
Affirmed.