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addressing identical jurisdictional arguments to those raised in present case
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Case No. 20020514-CA.
Filed September 26, 2002. (Not For Official Publication)
Appeal from the Fourth District, Heber Department, The Honorable Donald J. Eyre.
Benjamin A. Hamilton, Salt Lake City, for Appellant.
Before Judges Jackson, Billings, and Bench.
MEMORANDUM DECISION
Appellant Matthew R. Phillips appeals his conviction of Drug or Alcohol Related Reckless Driving, a class B misdemeanor, which resulted from a trial de novo in district court following a conviction in the Heber City Justice Court. This case is before the court on a sua sponte motion for summary dismissal on the basis that this court lacks jurisdiction over an appeal following trial de novo "unless the district court rules on the constitutionality of a statute or ordinance." Utah Code Ann. § 78-5-120(7) (Supp. 2002).
This appeal is one of several filed by counsel for Phillips seeking to appeal the district court's ruling on the constitutionality of rule 4-608 of the Utah Rules of Judicial Administration. The right to appeal a decision of the district court following a trial de novo is limited by statute. "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." Utah Code Ann. § 78-5-120(7) (Supp. 2002). In similarly situated appeals seeking review of the district court's denial of a constitutional challenge to former rule 4-608(2)(c), this court held that when an appellant "challenges the constitutionality of a rule, rather than a statute or ordinance as specified under the statute, this court is without jurisdiction over the appeal." Murray City v. Kvenvold, 2002 UT App 263 (per curiam); Murray City v. Serre, 2002 UT App 264 (per curiam); State v. Beuchert, 2002 UT App 266 (per curiam). Phillips's collateral challenge to the holding in those decisions is both procedurally inappropriate and without merit.
Ironically, the district court in this case ruled that rule 4-608 of the Utah Rules of Judicial Administration was unconstitutional in its application to Phillips. Nevertheless, Phillips's counsel filed a notice of appeal purporting to appeal "the District Courts decision on the Constitutionality of Rule 4-608(2)(C) of the Utah Rules of Judicial Administration," then filed a docketing statement in this court stating that the district court denied the motion to dismiss. In an effort to challenge rule 4-608 simultaneously in several cases, it appears that counsel has appealed an order that granted a motion to vacate the justice court conviction. The order was drafted by Phillips's counsel and bears a caption that is inconsistent with its content. We express no opinion on the merits of the district court's ruling. Counsel's further representation that a guilty plea was entered under State v. Sery, 738 P.2d 935 (Utah Ct.App. 1988), is unsupported by record evidence that the Sery requirements were satisfied. See State v. Bobo, 803 P.2d 1268, 1271 (Utah Ct.App. 1990) (stating appellant bears burden to demonstrate conditional nature of plea is "unambiguously established" in record). Rule 4-608 was amended in 2002, and former sub-section (2)(c) now appears as sub-section (4).
The case of Sandy City v. Scovel, 2002 UT App 265, cited by Phillips, was dismissed for lack of a final appealable judgment.
Phillips's argument in response to the sua sponte motion suggests his challenge is to the joint operation of rule 4-608 and section 78-5-120 to limit his right to appeal. In contrast, the motion filed in district court specifically sought only
a ruling that the requirement in former rule 4-608(2)(c) of the Rules of Judicial Administration, requiring a certificate of probable cause as provided in the Rules of Criminal Procedure in order to stay a sentence from a justice court pending the de novo trial appeal to the district court is unconstitutional and violates the due process and double jeopardy clauses of the Constitutions of both the United States and Utah.
The district court's ruling was limited to the constitutionality of former rule 4-608(2)(c), and it was not a ruling on the constitutionality of any statute or ordinance. Although it is unclear why Phillips would seek to challenge the favorable ruling obtained from the district court in this case, the district court did not rule on the constitutionality of a statute or ordinance and we lack jurisdiction over the appeal under section 78-5-120(7).
We grant the sua sponte motion and dismiss the appeal for lack of jurisdiction.
Norman H. Jackson, Presiding Judge, Judith M. Billings, Associate Presiding Judge, and Russell W. Bench, Judge, concur.