Opinion
Case No. 20001097-CA.
December 13, 2001. (Not For Official Publication)
Third District, Salt Lake Department, The Honorable Homer F. Wilkinson.
Ronald J. Yengich and Vanessa Ramos-Smith, Salt Lake City, for Appellant.
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee.
Before Judges BILLINGS, ORME, and THORNE.
MEMORANDUM DECISION
Appellant appeals his convictions for two counts of Aggravated Robbery, both first degree felonies, in violation of Utah Code Ann. § 76-6-302 (1999). After a review of the entire record, we dismiss the appeal for lack of jurisdiction.
Appellant's first attorney on appeal filed a docketing statement improperly stating that he filed the notice of appeal on December 8, 2000. Counsel attached an unstamped copy of the notice of appeal to the docketing statement. Appellant's current appellate attorney then entered a substitution of counsel replacing the first appellate counsel. New appellate counsel submitted a brief that candidly states: "Appellant was sentenced on November 9, 2000, to five years to life in prison on each count, to run concurrently. A Notice of Appeal was signed December 7, 2000, and filed December 12, 2000."
Rule 4(a) of the Utah Rules of Appellate Procedure provides that a notice of appeal "shall be filed with the clerk of the court from which the appeal is taken within 30 days after the date of entry of the judgment or order appealed from." In the present case, it is undisputed that the trial court entered the sentencing order on November 9, 2000. The last date appellant could file a notice of appeal was December 11, 2000. The stamped filing date on the notice of appeal is December 12, 2000.
In determining whether a notice of appeal is timely filed and establishes jurisdiction in an appellate court, this court must be bound by the filing date indicated on the notice of appeal transmitted to it by the trial court. This requirement is implicit in provisions of our rules governing timeliness of an appeal.
In re M.S., 781 P.2d 1287, 1288 (Utah Ct.App. 1989). We are therefore bound by the date stamped on appellant's notice of appeal, and must dismiss the appeal for lack of jurisdiction.
Appellant may still have a remedy pursuant to State v. Johnson, 635 P.2d 36 (Utah 1981), in which the Utah Supreme Court stated if a defendant directs his or her attorney to file an appeal within the statutory thirty-day limit, and the attorney fails to do so, the defendant may file a motion for postconviction relief under Rule 65B of the Utah Rules of Civil Procedure. Johnson, 635 P.2d at 38. If the trial court finds defendant's position meritorious, then resentencing would be proper to provide defendant an opportunity to appeal. State v. Montoya, 825 P.2d 676, 678 n. 2 (Utah Ct.App. 1991) (citing Johnson, 635 P.2d at 38).