Opinion
Case No. 20050435-CA.
Filed June 30, 2005. (Not For Official Publication).
Appeal from the Third District, Salt Lake Department, 041908146, The Honorable Judith S. Atherton.
Robert K. Heineman and Debra M. Nelson, Salt Lake City, for Appellant.
Mark L. Shurtleff and Matthew D. Bates, Salt Lake City, for Appellee.
Before Judges Davis, Jackson, and Orme.
MEMORANDUM DECISION
In this consolidated appeal, Robert Lee Flague appeals his convictions, based upon guilty pleas in two cases, of driving under the influence of alcohol or drugs. This case is before the court on a sua sponte motion to dismiss the appeal on the basis that Flague did not file a timely motion seeking to withdraw his guilty pleas and, therefore, we lack jurisdiction to consider a challenge to the validity of the guilty pleas on direct appeal.
Utah Code section 77-13-6(2)(b) requires a request to withdraw a guilty plea to "be made by motion before sentence is announced." Utah Code Ann. § 77-13-6(2)(b) (Supp. 2004). Flague concedes that he did not make a timely motion to withdraw his guilty pleas. The docketing statements filed in this court raise the single issue that the guilty pleas were not taken in compliance with rule 11 of the Utah Rules of Criminal Procedure.
In response to the sua sponte motion, Flague represents that he made a timely motion to withdraw his guilty pleas, which he subsequently withdrew. There is no written motion contained in the record or reflected in the docket. However, even if Flague made an oral motion to withdraw before sentence was announced, that motion was apparently withdrawn, which would not alter our analysis as the withdrawal of the motion would nullify the motion to set aside the guilty pleas.
See Utah R. Crim. P. 11.
Failure to make a timely motion to withdraw a guilty plea "extinguishes a defendant's right to challenge the validity of the guilty plea on appeal." State v. Reyes, 2002 UT 13, ¶ 3, 40 P.3d 630; see also State v. Merrill, 2005 UT 34, ¶ 20, 527 Utah Adv. Rep. 19 (ruling that Reyes is controlling precedent and confirming that the time limit in section 77-13-6(2)(b) is jurisdictional). The statute in effect at all times relevant to this appeal required that a request to withdraw a plea of guilty or no contest "shall be made by motion before sentence is announced." Utah Code Ann. § 77-13-6(2)(b). "Sentence may not be announced unless the motion is denied." Id. Although Flague concedes he did not make a timely motion to withdraw his guilty pleas, he contends that this court should consider his challenge to the validity of the guilty pleas. In Reyes, an appellant, who did not make a timely motion seeking to withdraw a guilty plea, argued that his challenge to the validity of the guilty plea under rule 11 of the Utah Rules of Criminal Procedure could be considered on appeal if plain error or exceptional circumstances existed. 2002 UT 13 at ¶ 4. The supreme court rejected the argument, concluding that the time limit for filing of a motion to withdraw the guilty plea was "an issue of jurisdiction." Id. Accordingly, a claim of plain error or exceptional circumstances would not allow the appellate court "to reach an issue over which [it] has no jurisdiction." Id.
Because Flague failed to file a timely motion to withdraw his guilty plea, his remedy is a post-conviction proceeding. See Utah Code Ann. § 77-13-6(2)(c) ("Any challenge to a guilty plea not made within the time period specified in Subsection (2)(b) shall be pursued under Title 78, Chapter 35a, Post-Conviction Remedies Act, and Rule 65C, Utah Rules of Civil Procedure."). The Utah Supreme Court recently stated that a defendant who does not satisfy the jurisdictional time limit for a motion to withdraw a guilty plea under section 77-13-6(2)(b) has the opportunity "to pursue challenges to the lawfulness of his plea under both the Post-Conviction [Remedies] Act . . . and Utah Rule of Civil Procedure 65C, provisions that embody the elements of the traditional writ of habeas corpus." Merrill, 2005 UT 13 at ¶ 25. The supreme court rejected a challenge to the constitutionality of the time limit contained in section 77-13-6(2)(b). See id. at ¶ 26.
The 2003 amendment to section 77-13-6(2)(b) removed the thirty-day time limit and allows a motion to withdraw a guilty plea to be made "before sentence is announced." See Utah Code Ann. § 77-13-6(2)(b) (2003).
Because we lack jurisdiction to consider the challenge to the validity of Flague's guilty pleas, we dismiss the appeal for lack of jurisdiction. Our dismissal is without prejudice to an action challenging the validity of the guilty pleas under the Post-Conviction Remedies Act.
James Z. Davis, Judge, Norman H. Jackson, Judge, Gregory K. Orme, Judge, concur.