Opinion
Case No. 20050259-CA.
Filed May 19, 2005. (Not For Official Publication).
Appeal from the Sixth District, Manti Department, 031600167, The Honorable K.L. McIff.
Gary H. Weight, Provo, for Appellant.
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee.
Before Judges Billings, Jackson, and Orme.
MEMORANDUM DECISION
Angela Aburto appeals the denial of her motion to dismiss pursuant to a conditional guilty plea. This matter is before the court on the State's motion for summary dismissal for lack of jurisdiction.
Aburto pleaded guilty on March 3, 2005, preserving her right to appeal the denial of her motion to dismiss. She filed her notice of appeal on March 4. A minute entry in the docket reveals that sentencing was delayed "so that defendant may file an appeal." To date, no sentence has been imposed by the district court.
Generally, an appeal may be taken only from a final judgment.See Utah R. App. P. 3(a). "In a criminal case, it is `the sentence itself which constitutes a final judgment from which the appellant has the right to appeal.'" State v. Bower, 2002 UT 100, ¶ 4, 57 P.3d 1065 (quoting State v. Gerrard, 584 P.2d 885, 886 (Utah 1978)); see also State v. Walker, 2002 UT App 290, ¶ 11, 55 P.3d 1165 (holding that "under Utah law a trial court must impose a sentence in order to create a final, appealable order").
Aburto has not been sentenced. Therefore, there is no final appealable order in place. In the absence of a final order, this court lacks jurisdiction and must dismiss the appeal. See Loffredo v. Holt, 2001 UT 97, ¶ 11, 37 P.3d 1070.
This appeal is dismissed, without prejudice to the filing of a timely appeal after a final judgment has been entered.
Judith M. Billings, Presiding Judge, Norman H. Jackson, Judge, and Gregory K. Orme, Judge, concur.