Opinion
Case No. 20031051-CA.
Filed June 17, 2004. (Not For Official Publication).
Appeal from the Third District, Salt Lake Department, The Honorable Frank G. Noel.
Richard S. Swart, Logan, Appellant Pro Se.
Mark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee.
Before Judges Bench, Greenwood, and Orme.
MEMORANDUM DECISION
Richard S. Swart appeals the dismissal of his petition for postconviction relief originally entered on March 6, 2000, and reentered on May 26, 2003. The appeal is before the court on Swart's motion for summary reversal, the State's cross-motion for summary dismissal, and Swart's motion to strike the cross-motion. We deny the motion to strike and the motion for summary reversal, and grant the cross-motion for dismissal.
This is the third appeal from the March 6, 2000 order dismissing the petition. We dismissed the first appeal for lack of jurisdiction because the notice of appeal was not timely. See Swart v. State, 2001 UT App 2 (per curiam), cert. denied, 29 P.3d 1 (Utah 2001). Following denial of a motion for relief from judgment under rule 60(b) of the Utah Rules of Civil Procedure in September 2000, Swart appealed both the March 6, 2000 dismissal order and the subsequent order denying the rule 60(b) motion. We concluded the notice of appeal was timely only from the denial of the rule 60(b) motion and limited the scope of the appeal accordingly. We later dismissed the second appeal on Swart's motion for voluntary dismissal.
In January 2002, Swart filed a "Motion to Vacate and Re-Enter Judgment" under rule 60(b). This motion asked the district court to vacate and reenter its March 6, 2000 dismissal, which Swart had twice unsuccessfully attempted to appeal, to allow him another opportunity for an appeal on the merits. Over the State's objection, the district court requested additional briefing on whether Swart's trial counsel had a conflict of interest from which prejudice must be presumed. On May 26, 2003, the court ordered the March 6, 2000 order vacated and reentered "to give to the petitioner the opportunity to pursue an appeal." In addition, the court made supplemental findings in support of its dismissal, finding that "the presumption of prejudice . . . arises only if it can be demonstrated that counsel actively represented the conflicting interests," which had not been shown. The court found that "[e]ven though [counsel] may have felt that the victim was telling the truth and that the petitioner was guilty, that would not necessarily demonstrate a conflict of interest," and there is no evidence that the conflict complained of affected counsel's representation through entry of the plea.
We first consider whether the 2003 order vacating and reentering the March 6, 2000 order restarted the appeal time. The second rule 60(b) motion was filed almost two years after the dismissal of the petition and a year after dismissal of the untimely direct appeal. Swart relied upon statements in Sittner v. Schriever, 2000 UT 45, 2 P.3d 442, that if the court grants a rule 60(b) motion and enters a new judgment, the appeal time will run from the date of entry of the new judgment. See id. at ¶ 22. The Supreme Court held Sittner was "entitled to seek review of the merits of both the original judgment dismissing his complaint and awarding attorney fees and the . . . supplemental judgment fixing the amount of attorney fees, which together constituted a final appealable judgment." Id. at ¶ 23. Sittner does not endorse reentry of a prior final judgment solely to allow an appeal. Similarly misplaced is Swart's reliance on Boggess v. Morris, 635 P.2d 39 (Utah 1981) and State v. Johnson, 635 P.2d 36 (Utah 1981), which establish a remedy to allow a criminal defendant who establishes facts demonstrating denial of the constitutional right to a direct appeal of a conviction to be resentenced. See also Manning v. State, 2004 UT App 87, ¶¶ 23-25, 496 Utah Adv. Rep. 27 (explaining what constitutes denial in this context and the limited availability of resentencing as a remedy). Finally, reentry of a final order to allow another opportunity to appeal is not supported byOseguera v. Farmers Ins., 2003 UT App 46, 68 P.3d 1008. Unlike the unique procedural facts of that case, there is no evidence in this case that the district court "affirmatively misled" Swart or counsel about the date of entry of the original dismissal. We do not consider representations to the contrary asserted for the first time on appeal. See Ong Int'l (U.S.A.) Inc. v. 11th Avenue Corp., 850 P.2d 447, 455 (Utah 1995) (stating appellate courts will not consider issue raised for the first time on appeal).
"Where a judgment is reentered, [and] the subsequent judgment does not alter the substantive rights affected by the first judgment, the time for appeal runs from the first judgment." Foster v. Montgomery, 2003 UT App 405, ¶ 18, 82 P.3d 191. Noting that "[t]he trial court . . . essentially reentered the same order it had previously entered to effectuate compliance with the first order," we held in Foster that the original order was a final appealable order and this court had jurisdiction to consider only new issues decided in the second order. Id.
We next consider the effect of the supplemental findings. The March 6, 2000 order resolved all issues raised in the petition and was final and appealable. The alleged conflict of interest was not raised by the petition, but was asserted in a letter to the trial judge after dismissal of the first untimely appeal. Although the district court sua sponte entered supplemental findings, the reentered order did not alter substantive rights, nor was it necessary to supplement the original judgment to make it final and appealable. The original judgment was final and appealable upon entry.
Because we conclude the reentered order did not restart the appeal time, we dismiss the appeal from the March 6, 2000 order as untimely.
Russell W. Bench, Associate Presiding Judge, Pamela T. Greenwood, Judge and Gregory K. Orme, Judge.