Opinion
Case No. 20030817-CA.
Filed December 2, 2004. (Not For Official Publication).
Appeal from the Third District, Salt Lake Department, The Honorable Robin W. Reese.
Elizabeth Hunt, Salt Lake City, for Appellant.
Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee.
Before Judges Billings, Bench, and Jackson.
MEMORANDUM DECISION
Defendant Richard F. Norris appeals his conviction of attempted communications fraud. See Utah Code Ann. §§ 76-4-101 to 76-10-1801 (1997). We affirm.
In December 1994, West Valley City (West Valley) charged Defendant with four misdemeanor counts of communications fraud in the Third Circuit Court, West Valley Department. See Utah Code Ann. § 76-10-1801(1) (1994). In February 1996, the circuit court dismissed the misdemeanor charges, ruling that the aggregate of the four misdemeanor counts exceeded the circuit court's jurisdictional limit of $1000.00. West Valley appealed the circuit court's decision.
Circuit courts merged into district courts on July 1, 1996.See Utah Code Ann. § 78-1-2 (1997).
On December 10, 1996, because the State was prepared to file felony counts of communications fraud against Defendant in district court, West Valley moved this court to dismiss its appeal. On March 26, 1997, this court dismissed the appeal, and on May 13, 1997, this court issued a remittitur. Two days later, the State filed twenty felony charges of communications fraud against Defendant in district court.
Defendant moved to recall the remittitur on the ground that it had been issued prematurely because Defendant's time to file a petition for certiorari had not expired. On June 26, 1997, the Utah Supreme Court ordered this court to recall the remittitur, which this court did on June 30, 1997. On September 26, 1997, Defendant moved the district court to dismiss the felony charges because the West Valley case was still active. The district court did not dismiss the charges, but rather stayed its proceedings until all activity in the West Valley appeal had ceased.
After Defendant's petitions for certiorari had been denied in both the Utah Supreme Court and the United States Supreme Court, this court reissued the remittitur on October 30, 1998. Defendant then moved the district court to dismiss the felony charges, claiming that (i) the communications fraud statute was unconstitutionally vague and overbroad, and (ii) the district court lacked jurisdiction over the May 1997 felony charges because the May 1997 remittitur was subsequently recalled. The district court denied the motions.
Defendant then entered a conditional plea in which Defendant preserved his right to challenge the constitutionality of the communications fraud statute and the jurisdiction of the district court to hear the felony charges filed in May 1997. Defendant appeals these two issues.
Defendant attempts to raise numerous other issues in his briefs. We do not address these issues because they exceed the scope of what was preserved in the conditional plea. Defendant mentions plain error in a single paragraph, but fails to apply plain error doctrine to any of the specific issues raised. Thus, we do not address Defendant's plain error argument because it is inadequately briefed. See Utah R. App. P. 24(a)(5)(B) ("The brief of the appellant shall contain . . . a statement of grounds for seeking review of an issue not preserved in the trial court.").
Defendant argues that the statute under which he was charged is unconstitutionally vague and overbroad. However, after this appeal was filed, this court addressed these specific challenges.See State v. Norris, 2004 UT App 267, ¶¶ 8-16, 97 P.3d 732 (holding that the communications fraud statute is neither unconstitutionally overbroad nor unconstitutionally vague). Thus, Defendant's constitutional challenges to the communications fraud statute fail.
Defendant claims that our prior decision did not directly deal with the phrase "anything of value," and thus we are free to hold that the statute is unconstitutionally vague on that basis. However, our prior decision did hold that "because Defendant was charged with devising a scheme to defraud others of money, his actions do not fall within the anything of value realm, and thus, he may not challenge this phrase as unconstitutionally vague."State v. Norris, 2004 UT App 267, ¶ 15, 97 P.3d 732 (quotations and citations omitted). In this case, Defendant also was charged with devising a scheme to defraud others of money, and thus under the rule articulated in Norris, Defendant also may not challenge this phrase as unconstitutionally vague in this case.See id.
In addition, Defendant's challenge to the State charging multiple counts when one communication reaches numerous victims already has been decided by this court. See State v. Bradshaw, 2004 UT App 298, 99 P.3d 359.
Defendant also challenges the jurisdiction of the trial court to hear the felony charges filed in May 1997. Specifically, Defendant argues that even though this court had issued a remittitur in the West Valley appeal before the felony charges were filed, the remittitur had no effect because it was subsequently recalled. We disagree.
"The determination of whether a court has subject matter jurisdiction is a question of law, which we review for correctness, according no deference to the district court's determination." Beaver County v. Qwest, Inc., 2001 UT 81, ¶ 8, 31 P.3d 1147. The issue in this case is whether a valid order dismissing the misdemeanor charges in the West Valley case existed at the time felony charges were filed. The parties focus their arguments on Hi-Country Estates Homeowners Ass'n. v. Foothills Water Co., 942 P.2d 305 (Utah 1996), which held that actions taken by a trial court after a remittitur issues are void if the remittitur is subsequently recalled. See id. at 307.Hi-Country, however, does not control the outcome of this case.
The controlling case is Chase Manhattan Bank v. Principal Funding Corp., 2004 UT 9, 89 P.3d 109. In Chase Manhattan, the court outlined the situations in which judgments by appellate courts are self-executing. See id. at ¶ 11. The court concluded that, under the 1997 version of rule 36 of the Utah Rules of Appellate Procedure, where "the trial court need not act for a valid order to be found in the record," the judgment is self-executing unless a party specifically requests and is granted a stay of the remittitur before it issues. Id. at ¶ 12. Specifically, the court held that if a judgment by this court is self-executing, then a valid order exists on the record from the moment the remittitur is issued until it is subsequently recalled. See id. at ¶ 7.
The State cites Nielson v. Schiller, 92 Utah 137, 66 P.2d 365 (1937), a civil case, for the proposition that a second-filed action should be stayed until the first-filed action has been resolved. See id. at 368. Because that case did not involve a remittitur, or even an appeal, it does not speak directly to thejurisdictional issue in this case. Rather, it merely indicates that in this case it was proper for the district court to issue a stay once it was aware that the appeal had been resuscitated.
The current rule avoids the odd situation in this case by providing that a remittitur issues immediately after the time for filing a petition for certiorari has expired, unless such a petition is filed, in which case the remittitur is automatically stayed. See Utah R. App. P. 36(a)(2).
In the West Valley appeal, acting on a motion by the appellant, this court dismissed the appeal. Dismissal of the West Valley appeal required no further action by the circuit court, but rather left in place the circuit court's ruling that dismissed the misdemeanor charges without prejudice. Thus, when the State filed felony charges in district court two days after this court issued a remittitur, no further action was required in the West Valley case. Therefore, a valid judgment existed on the record when felony charges were filed. The subsequent recall of the remittitur on Defendant's motion did not change this fact. See id. at ¶¶ 12-13. For this reason, the district court did not lack jurisdiction when charges were filed in this case. Therefore, we affirm.
Defendant claims that his due process rights were violated when the State vindictively prosecuted the felony case against him, and thus under Blackledge v. Perry, 417 U.S. 21 (1974), the due process violations strip the district court of jurisdiction. However, unlike in Blackledge, the record in this case does not indicate a "realistic likelihood of `vindictiveness,'" id. at 27, because (i) the original trial court dismissed the misdemeanor charges sua sponte, (ii) the appeal was taken by West Valley, not the Defendant, (iii) the State indicated its intention to file felony charges prior to Defendant asking the Utah Supreme Court to recall the appeal, and (iv) the State had a legitimate reason to file felony charges when it did, namely concern over the statute of limitations. While the State's actions in this case were less than ideal, the record does not come close to establishing prosecutorial vindictiveness in response to Defendant exercising his procedural rights on appeal.
WE CONCUR: Russell W. Bench, Associate Presiding Judge and Norman H. Jackson, Judge.