Opinion
Case No. 20040292-CA.
Filed November 26, 2004. (Not For Official Publication).
Appeal from the Third District, Sandy Department, The Honorable Royal I. Hansen.
Jennifer K. Gowans, Salt Lake City, for Appellant.
Mark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee.
Before Judges Bench, Billings, and Orme.
MEMORANDUM DECISION
This case is before the court on Appellant Sione Latu's motion for remand pursuant to rule 23B of the Utah Rules of Appellate Procedure and the State's cross motion for summary dismissal for lack of jurisdiction pursuant to rule 10 of the Utah Rules of Appellate Procedure.
Latu pleaded guilty to aggravated robbery, reduced to a second degree felony. He was sentenced that same day. Latu then filed a notice of appeal. He did not, however, file a motion to withdraw his plea. The basis of Latu's motion to remand is that counsel for his plea did not inform Latu of the possibility of lesser offenses, including theft and assault. Also, Latu claims that counsel told him that he had no choice but to plead guilty because he would certainly be convicted of at least the second degree felony at trial. Latu submitted an affidavit in support of his claims. In his affidavit, Latu claims that he would not have pleaded guilty had he been aware of the lesser offenses.
The State objected to remand and filed a cross motion for summary dismissal on the basis that this court lacks jurisdiction over the appeal because Latu failed to file a motion to withdraw his plea. See State v. Reyes, 2002 UT 13, ¶ 5, 40 P.3d 630. The State claims that Latu's only remedy at this point is a post-conviction petition under the Post-Conviction Remedies Act.See Utah Code Ann. § 77-13-6(2)(c) (2003); Utah R. Civ P. 65C.
Latu claims that denial of a direct appeal from the plea would result in violations of his constitutional rights. First, Latu contends that dismissal of his appeal would violate his right to due process. Since the 2003 revision to Utah Code section 77-13-6, a motion to withdraw a plea must be made and ruled upon prior to imposition of sentence. The result, according to Latu, is to deprive defendants who plead and are sentenced on the same day of their direct appeal.
The State responds that defendants who plead and are sentenced at the same time are not deprived of due process because they have a remedy in the form of a post-conviction petition. The State also contends that defendants who plead, give up many of their rights and significantly limits their right to appeal. Defendants are informed of this at the time the plea is taken.
Latu claims that a post-conviction petition is inadequate because, in a petition, the appellant has the burden of persuasion. The State correctly counters that, in both a motion to withdraw a guilty plea and in a direct appeal, the appellant also has the burden of persuasion.
Second, Latu claims an equal protection violation. Specifically, the defendants who plead and are sentenced the same day are treated differently from those who plead and wait to be sentenced. The distinction, according to Latu, is not justified. The State argues that all defendants are required to move to withdraw their plea under Utah Code section 77-13-6, therefore, all are treated the same. Moreover, defendants who plead and are sentenced the same day do so at their own request. Therefore, any distinction is created by a defendant's own actions.
Third, Latu alleges a separation of powers violation. Latu, however, wholly fails to argue or provide this court with any analysis for this claim.
Because Latu failed to file a motion to withdraw his guilty plea, this court lacks jurisdiction over the appeal. Once this court has determined that it lacks jurisdiction, it "retains only the authority to dismiss the action." Varian-Eimac v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct.App. 1989). As a result, this court also lacks jurisdiction to remand the matter pursuant to rule 23B of the Utah Rules of Appellate Procedure.
Accordingly, the motion for remand pursuant to rule 23B of the Utah Rules of Appellate Procedure is denied and the appeal is dismissed.
Judith M. Billings, Presiding Judge, Russell W. Bench, Associate Presiding Judge and Gregory K. Orme, Judge.