Thursday, April 27, 2006

Two amendments to the Utah Rules of Appellate Procedure have been proposed:

URAP 04. Appeal as of right: when taken. Amend. Creates a procedure to implement the directive in State v. Manning, 2005 UT 61, 122 P.3d 628, allowing a criminal defendant to have appeal rights reinstated, when the defendant has been deprived of the an appeal.
URAP 24. Briefs. Amend. Clarifies the briefs that are to be filed and the number of pages permitted in cases involving cross-appeals. A singled brief may not exceed 50 pages, and the combined total of a party's two briefs may not exceed 75 pages

See here for the full text of the amendments and to read or submit comments.

Saturday, April 22, 2006

It's ok to eliminate all reasonable doubt

State v. Halls, 2006 UT App 142

In State v. Reyes, 2005 UT 33, the supreme court threw out the requirement from State v. Robertson, 932 P.2d 1219 (Utah 1997), that a reasonable doubt jury instruction require the prosecution to "obviate all reasonable doubt."

Halls had a jury instruction that required the prosecution to "eliminate all reasonable doubt." He complained that the instruction was manifest error under Reyes. The court of appeals disagreed. It held that the phrase "eliminate all reasonable doubt" is ok, so long as the jury instruction as a whole adequately communicates the principle of reasonable doubt, which is the new test under Reyes.
Bluemel v. State, 2006 UT App 141

Blumel pled guilty to having sex with her fourteen year-old foster son. She pled guilty and got sentenced to three concurrent prison terms of five years to life. She allegedly asked her attorney to file an appeal, but no appeal was filed. More than two years after sentencing, Bluemel got a new attorney and filed a post-conviction petition.

The State moved to dismiss the peition because it was untimely (filed more than a year after the last day to file a direct appeal) and the interests-of-justice exception did not apply. The trial court agreed and tossed the case.

The court of appeals disagreed and reversed. It held that the plea-taking court had failed to properly incorporate Bluemel's plea affidavit and failed to inform her of several rule 11(e) (criminal rules) rights. The court then determined that "non-compliance with rule 11 readily falls within the interests-of-justice exception under the [Post-Conviction Remedies Act (PCRA)]."

City attorneys, read the traffic code

Orem City v. Martineau, 2006 UT App 136

Martineau was caught crossing the “gore,” i.e. the painted area separating the freeway and the freeway off-ramp. Orem City charged first Martineau with improper lane use. Then, just before trial, the City amended the charge to failure to obey a traffic device. The trial judge convicted him in a bench trial of the second offense.

Unfortunately for Orem City, neither of those offenses really fit the facts. While arguably the gore is a traffic control device, there is a more specific statute that governs crossing the gore: 41-6-63.3 (now 41-6a-713). But since Orem never charged Martineau with that statute, the court of appeals reversed his conviction. The court relied on a well known principle of statutory construction that a more specific statute governs over a more general statute.

Monday, April 10, 2006


Jeff Gray is the AAG who will argue the Brigham City case in the U.S. Supreme Court in two weeks, on April 24th. His reply brief is due this Wednesday.

I caught him leaving work early today at 2:30 to go to his son's little league game. I believe he attends all of his son's games.

In twenty years, his son may or may not remember that his dad argued in the U.S. Supreme Court, but I'm sure he will remember that his dad attended his baseball games.

Saturday, April 08, 2006

Mark Duane Workman was my upstairs neighbor when I lived in Murray. I would never have pegged him for a car theif, or a stolen car reciever.

State v. Workman, 2006 UT App 116

Venue was proper in Utah county for Workman's theft by recieving conviction, even though Workman lived in Salt Lake County and the stolen item, a 1998 Mitsubishi Mirage, was stolen in Salt Lake County. The car was found by police in Utah county in the possesion of Workman's girlfriend.

The court of appeals looked to the venue statute, Utah Code Ann. 76-1-202(1)(g)(iii), which says that venue for a theft charge is proper in any county where the defendant exercises control over the stolen property. Whether Workman exercised control over the car is a fact sensitive question, so the court of appeals gave the trial court some deference in the application of the facts to the venue statute. The court of appeals ultimately concluded that venue was proper because Workman had only loaned the car to his girlfriend, and she had contacted him while in Utah county to get his permission to keep the car there another day.

Friday, April 07, 2006

Even though this case is really about summary judgment, I'm going to file it under Creditors and Debtors, cause this debtor deserves some attention for his creativity.

Granite Credit Union v. Remick, 2006 UT App 115

Remick got a loan from Granite secured by a 1997 Plymouth Voyager. When the loan became delinquent, Granite tried to repossess it. Before Granite could find the van, Remick had his towing company impound the van. He then sent Granite a bill for $1682 for towing costs and storage.

Granite ultimately prevailed on a summary judgment motion becuase Remick failed to comply with Utah Code Ann. § 72-9-603 (Supp. 2005).

No standing to challenge sodomy and fornication laws.

Everybody knows that Utah’s sodomy and fornication statutes are unenforceable against consenting adults. But for some reason, Brian Barnard feels like he needs to challenge them anyway.

D.A.R. v. State, 2006 UT App 114

D.A.R sought an injunction preventing the State from enforcing its sodomy and fornication laws. He claimed that he had engaged in “private, noncommercial, consensual oral sex and sexual intercourse with an unmarried woman” and that he intends to continue to have sex with unmarried women and “fears future criminal prosecution.”

The court threw out his suit on standing grounds, and the court of appeals affirmed. To have standing in Utah, a plaintiff must show one of the following three facts:

1) he has suffered a palpable injury;
2) no one else has a greater interest in the litigation than he; or
3) the issue is of sufficient public importance to grant standing.

The court of appeals noted that the State had not threatened to prosecute D.A.R and in fact had submitted an affidavit stating that it had no intention of prosecuting D.A.R. It also cited cases from the Tenth Circuit and from other panels of the court that had denied standing to citizens seeking to overturn Utah’s sodomy and fornication laws (see D.L.S v. Utah, 374 F.3d 971 (10th Cir. 2004); Berg v. State, 2004, UT App, 337, 100 P.3d 261).

Saturday, April 01, 2006

Court’s memorandum decision, not its subsequent order, was final judgment for purposes of appeal

To appeal a district order, one must file a notice of appeal with thirty days of the final judgment. The thirty-day period is jurisdictional, and appeals are often dismissed for lack of jurisdiction on the ground that the notice of appeal was filed late. Sometimes a notice is late because a party chooses not to appeal and then gets buyer’s remorse. But often, the notice of appeal is late because the attorney misjudges when exactly the final judgment occurred. It’s not hard to screw up, as the following case illustrates.

Code v. Utah Dep’t of Health, 2006 UT App 113

On January 10, 2005, the trial court dismissed Code’s complaint with prejudice in a signed memorandum decision. At the end of the decision, the court stated, “For the reasons stated above, the Court dismisses Plaintiff’s claim.” Sounds final right. The court of appeals thought so. It dismissed Code’s appeal because notice of appeal was not filed until March 8, 2005, almost two months after entry of the memorandum decision.

But the trial court had signed an order of dismissal on Febraury 25, 2005, after the memorandum decision, and Code’s notice of appeal was timely from that order. The court of appeals held, however, that the February 25th order did not restart the time to appeal because it did nothing to alter the substantive rights of the parties. It merely reiterated the dismissal already in effect.

Code claimed that she was merely following rule 7(f)(2), Utah Rules of Civil Procedure, which states:
Unless the court approves the proposed order submitted with an initial memorandum, or unless otherwise directed by the court, the prevailing party shall, within fifteen days after the court’s decision, serve upon the other parties a proposed order in conformity with the court’s decision. Objections to the proposed order shall be filed within five days after service. The party preparing the order shall file the proposed order upon being served with an objection or upon expiration of the time to object.

The court of appeals held that rule 7(f)(2) is merely the default rule in case the trial court order does not specify which party should prepare the final order. In this case, the court explained, the memorandum decision made clear that it was the final judgment.

The court of appeals does not give us enough facts in its decision to guess at whether Code genuinely thought she was following rule 7(f)(2), or if she was just trying to restart the time to appeal because she hadn’t filed her notice on time. I’ve seen both happen. I believe that fairness, however, dictates that our appellate courts construe final judgments and orders in favor of the appealing party. A party should not be denied their appeal merely because their attorney guessed wrong about which act of the district court constituted the final judgment under rule 3, Utah Rules of Appellate Procedure. But until some higher court agrees with me, the best advice is to file your notice of appeal as soon as you have something in writing that looks like a final judgment. If your notice turns out to be premature, it will still be timely under rule 4(c), Utah Rules of Appellate Procedure.