Opinion
Case No. 20070049-CA.
FILED: June 7, 2007. NOT FOR OFFICIAL PUBLICATION.
Appeal from First District, Box Elder Department, 031100223 The Honorable Ben H. Hadfield.
Duke G. Duccini, Draper, Appellant Pro Se.
Mark L. Shurtleff and Kris C. Leonard, Salt Lake City, for Appellee.
Before Judges Greenwood, Billings, and Davis.
MEMORANDUM DECISION
This matter is before the court on its sua sponte motion for summary disposition. Defendant Duke G. Duccini seeks to appeal the denial of a motion to withdraw his guilty plea entered November 12, 2003, which was the basis for a December 18, 2003 conviction. We dismiss the appeal for lack of jurisdiction.
Defendant filed a motion to withdraw his guilty plea on July 6, 2006. On December 15, 2006, the district court denied the motion as both untimely and without merit. Utah Code section 77-13-6 requires a defendant to file a motion to withdraw a guilty plea prior to the date the sentence is announced. See Utah Code Ann. § 77-13-6(2)(b) (Supp. 2006). 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, 114 P.3d 585 (concluding that time limitation contained within section 77-13-6(2)(b) is jurisdictional).
Defendant's motion is clearly untimely, as it was filed over two and a half years after he was sentenced. Accordingly, we lack jurisdiction to review the substantive issues raised on appeal.
Because Defendant failed to timely move to withdraw his guilty plea, any challenge to the validity of the plea agreement must be brought in a post-conviction proceeding. See Utah Code Ann. § 77-13-6(2)(c) (Supp. 2006) ("Any challenge to a guilty plea not made within the time period specified in [s]ubsection (2)(c) shall be pursued under Title 78, Chapter 35a, PostConviction Remedies Act, and [r]ule 65C, Utah Rules of Civil Procedure."); see also State v. Merrill, 2005 UT 34, ¶ 25, 114 P.3d 585 (concluding that defendant not satisfying jurisdictional time limit for withdrawing plea still has potential remedy under the Post-Conviction Relief Act and Utah Rule of Civil Procedure 65C).
The appeal is dismissed.
Pamela T. Greenwood, Associate Presiding Judge
Judith M. Billings, Judge
James Z. Davis, Judge