Utah Court of AppealsFeb 10, 2005
2005 UT App. 59 (Utah Ct. App. 2005)

Case No. 20040792-CA.

Filed February 10, 2005. (Not For Official Publication).

Appeal from the First District, Logan Department, The Honorable Gordon J. Low.

Rogelio E. Caballero, Draper, Appellant Pro Se.

Mark L. Shurtleff, and Laura B. Dupaix, Salt Lake City, for Appellee.

Before Judges Billings, Greenwood, and Thorne.



This case is before the court on its own motion for summary disposition on the basis of lack of jurisdiction because no final appealable order exists. See Utah R. App. P. 3(a). Appellant Rogelio E. Caballero filed a motion to reduce his conviction of the offense of homicide, a first degree felony, to a second degree felony. See Utah Code Ann. § 76-3-402 (2003). The State filed an objection, which Caballero indicates was never served upon him. On August 18, 2004, the trial court issued an order that denied Caballero's motion.

Caballero filed a motion to reconsider or, in the alternative, a notice of appeal, based on the failure to afford him an opportunity to respond to the State's objection. On October 12, 2004, the trial court issued an order holding the August 18, 2004 order in abeyance until Caballero is able to file a response to the State's objection. To date no subsequent order has issued.

Both the State and Caballero agree that, because the August 18, 2004 order has been held in abeyance, no final appealable order exists from which to appeal. As a result, the notice of appeal is premature and untimely. "If an appeal is not timely filed, this court lacks jurisdiction to hear the appeal." Serrato v. Utah Transit Auth., 2000 UT App 299, ¶ 7, 13 P.3d 616. Once a court has determined that it lacks jurisdiction, it "retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct.App. 1998).

Accordingly, this appeal is dismissed without prejudice to filing of a timely appeal from a final appealable order.

WE CONCUR: Judith M. Billings, Presiding Judge, Pamela T. Greenwood, Judge and William A. Thorne Jr., Judge.