Opinion
Case No. 20060844-CA.
Filed November 24, 2006.
Appeal from the Second District, Ogden Department, 051904529 The Honorable Ernest W. Jones.
Kevin L. Upshaw, Ogden, Appellant Pro Se.
Before Judges Bench, Billings, and Thorne.
MEMORANDUM DECISION
On September 6, 2006, the district court entered a memorandum decision denying Upshaw's second motion to correct illegal sentence. Upshaw filed an "amended" notice of appeal on September 13, 2006, seeking to belatedly appeal the October 11, 2005 ruling on the original motion to correct illegal sentence and the September 19, 2005 judgment and conviction. By captioning the notice of appeal as "amended," Upshaw seeks to revive his right to appeal from the original judgment and sentence and the decision on his first motion to correct illegal sentence. However, the September 13, 2006 notice of appeal was timely only as to the ruling on the second motion to correct illegal sentence. The notice of appeal was not effective to confer appellate jurisdiction to review the original judgment and sentence or the ruling on the first motion to correct an illegal sentence. In addition, we dismissed the untimely appeal from his conviction and sentence. See Ogden v. Upshaw, 2006 UT App 26.
If we construe the appeal as taken from the September 2006 ruling on the second motion to correct illegal sentence, the new issues raised in that motion were largely directed to the claim that Upshaw was improperly sentenced for a domestic violence related offense. The issue was resolved in the proceedings seeking probation revocation, with the district court's removal of the requirement for domestic violence counseling, substituting anger management classes, and removal of any domestic violence enhancement. Thus, claims regarding those aspects of the sentence are moot. The remaining claim, that Upshaw could not be sentenced for his class B misdemeanor conviction because it was not combined with a more serious offense, is frivolous.
We dismiss the appeal for lack of jurisdiction insofar as it seeks to appeal from the September 2005 judgment and sentence and the October 2005 ruling on the first motion to correct illegal sentence. We affirm the September 2006 ruling on the second motion to correct illegal sentence.
WE CONCUR: Judith M. Billings, Judge and William A. Thorne Jr., Judge.