Filed: Aug. 18, 2011
Latest Update: Aug. 18, 2011
Summary: DECISION PER CURIAM: 1 Joseph Lee Apadaca appeals his plea-based conviction for robbery. This matter is before the court on its sua sponte motion for summary disposition. 2 A notice of appeal must be filed "with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from." Utah R.App. P. 4(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. Bowers
Summary: DECISION PER CURIAM: 1 Joseph Lee Apadaca appeals his plea-based conviction for robbery. This matter is before the court on its sua sponte motion for summary disposition. 2 A notice of appeal must be filed "with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from." Utah R.App. P. 4(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. Bowers,..
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DECISION
PER CURIAM:
¶ 1 Joseph Lee Apadaca appeals his plea-based conviction for robbery. This matter is before the court on its sua sponte motion for summary disposition.
¶ 2 A notice of appeal must be filed "with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from." Utah R.App. P. 4(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. Bowers, 2002 UT 100, ¶ 4, 57 P.3d 1065 (quoting State v. Gerrard, 584 P.2d 885, 886 (Utah 1978)). If an appeal is not timely filed, this court lacks jurisdiction to hear the appeal and must dismiss. See Serrato v. Utah Transit Auth., 2000 UT App 299, ¶ 7, 13 P.3d 616.
¶ 3 Apadaca was originally sentenced on August 30, 2010. Apadaca was then resentenced on December 13, 2010, in response to the State's Motion to Correct Plea of Guilty and Resentence. Apadaca filed a motion to withdraw his guilty plea on January 5, 2011, which was denied on January 24, 2011. Such a motion does not extend the time to appeal in a criminal case. See Utah R.App. P. 4(b)(1) (setting forth post-judgment motions that extend the time to file a notice of appeal). Apadaca did not file a notice of appeal until February 8, 2011. While the notice of appeal was timely filed as to the denial of the motion to withdraw the guilty plea, it was untimely as to the sentence. Accordingly, this court has jurisdiction to review the district court's order denying Apadaca's motion to withdraw the guilty plea but lacks jurisdiction to review any issues relating to the underlying judgment. See Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct.App.1989) (stating that when this court lacks jurisdiction to hear an appeal it must dismiss it).
¶ 4 The district court correctly denied Apadaca's motion to withdraw his guilty plea as untimely. In order to challenge the validity of a guilty plea, a defendant must file a motion to withdraw his plea before the sentence is announced. See Utah Code Ann. § 77-13-6(2)(b) (2008). "Failure to withdraw a guilty plea within the time frame dictated by section 77-13-6 deprives [both] the trial court and appellate courts of jurisdiction to review the validity of the plea." State v. Ott, 2010 UT 1, ¶ 18, 247 P.3d 344. This jurisdictional bar extends to claims concerning the effectiveness of counsel. See State v. Rhinehart, 2007 UT 61, ¶ 14, 167 P.3d 1046. Thus, because Apadaca filed his motion after the sentence was announced, the district court did not have jurisdiction to consider the motion.1
¶ 5 Accordingly, we affirm.
