Opinion
Case No. 20051046-CA.
Filed February 2, 2006. (Not For Official Publication).
Appeal from the Second District, Ogden Department, 051904529, The Honorable Ernie W. Jones.
Kevin L. Upshaw, Ogden, Appellant Pro Se.
Before Judges Greenwood, McHugh, and Orme.
MEMORANDUM DECISION
Kevin L. Upshaw seeks to appeal his conviction on a class B misdemeanor assault charge. This is before the court on its own motion for summary disposition based on lack of jurisdiction due to an untimely filed notice of appeal. Neither party responded to the motion.
Upshaw pleaded guilty to the charge and was sentenced on September 19, 2005. He filed his notice of appeal on November 14, 2005. Pursuant to rule 4, a notice of appeal must be filed within thirty days after the entry of the order appealed. See Utah R. App. P. 4(a). The timely filing of a notice of appeal is jurisdictional. See State v. Bowers, 2002 UT 100, ¶ 5, 57 P.3d 1065. Upshaw did not file his notice of appeal within the thirty-day time frame, thereby depriving this court of jurisdiction over this appeal. Where the court lacks jurisdiction, it retains only the authority to dismiss the appeal. See Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct.App. 1989).
Although Upshaw filed a motion to enlarge the time for filing an appeal, the trial court has not taken action on the motion, leaving the notice of appeal untimely at this point.See Utah R. App. P. 4(e).
Accordingly, this appeal is dismissed, without prejudice to the timely filing of a notice of appeal if the trial court grants the motion for an enlargement of time.
Pamela T. Greenwood, Associate Presiding Judge, Carolyn B. McHugh, Judge, Gregory K. Orme, Judge, Concur.