State v. Gambrell

814 P.2d 1136, 164 Utah Adv. Rep. 48, 1991 Utah App. LEXIS 92, 1991 WL 115101
CourtCourt of Appeals of Utah
DecidedJune 26, 1991
DocketNo. 900559-CA
StatusPublished
Cited by5 cases

This text of 814 P.2d 1136 (State v. Gambrell) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gambrell, 814 P.2d 1136, 164 Utah Adv. Rep. 48, 1991 Utah App. LEXIS 92, 1991 WL 115101 (Utah Ct. App. 1991).

Opinion

BILLINGS, Associate Presiding Judge:

Defendant appeals from his conviction of three counts of negligent homicide in violation of Utah Code Ann. § 76-5-206 (1990). As a threshold matter he challenges the trial court’s jurisdiction and in addition challenges the court’s imposition of three consecutive sentences, one term for each victim killed in the traffic accident. We affirm.

The basic facts are not in dispute. Gambrell was driving a large truck loaded with 78,000 pounds of steel down a grade when the braking system of the truck catastrophically failed.

In an attempt to stop the truck, Defendant steered it across the opposing lane of traffic toward a hillside. As he crossed into the opposing lane the victims came around the bend in their vehicle. All three were killed in the ensuing crash.

Inspection of the six brakes that were not destroyed in the accident established that none were adjusted according to federal or state requirements. The State’s expert testified that at the time of the accident Defendant had no potential to stop. Defendant admitted that he did not know how to adjust the brakes and that the brakes had not been adjusted since he left Tennessee.

An information was signed by the putative Iron County Attorney, Scott M. Burns, and Defendant was ultimately tried by jury. The jury convicted Defendant of three counts of negligent homicide and the judge sentenced him to three consecutive one year terms in the Iron County Jail, one year on each count.

Defendant appeals his convictions. First, he claims the Iron County Attorney who signed the information instituting proceedings against him had not posted a bond upon taking office and thus was without authority to file the information. Defendant argues that because of the defective information the court did not have jurisdiction. Second, Defendant claims the trial court exceeded its authority under the negligent homicide statute by imposing three consecutive sentences, one term for each victim killed. These are questions of law and thus we review the trial court’s actions for correctness. City of Monticello v. Christensen, 788 P.2d 513 (Utah), cert. denied, — U.S. -, 111 S.Ct. 120, 112 L.Ed.2d 89 (1990).

I. DE FACTO COUNTY ATTORNEY

Initially, Defendant claims that because the Iron County Attorney, who signed the information initiating charges against him, never filed a bond as required by Utah Code Ann. § 17-16-11 (Supp. 1990),1 the county attorney was without [1138]*1138authority to initiate the charges. He thus argues the trial court did not have jurisdiction to hear the case, and his convictions must be vacated.2

Defendant relies on Utah Code Ann. § 52-2-1 (1989), which provides that an office which requires a bond becomes vacant if the holder does not file the requisite bond within sixty days of the beginning of his term.

Whenever any person duly elected or appointed to any office of the state or any of its political subdivisions, fails to qualify for such office within sixty days after the date of the beginning of the term of office for which he was elected or appointed, such office shall thereupon become vacant and shall be filled as provided by law.

Utah Code Ann. § 52-2-1 (1989).

Defendant calls our attention to two early Utah cases to support his position that because of the operation of section 52-2-1 the trial court lacked jurisdiction. In State v. Beddo, 22 Utah 432, 63 P. 96 (1900), the court reversed a conviction based on a defective information signed by a purported district attorney. The office of district attorney had been created by a new legislative act eliminating the position of county attorney. The court struck down the new district attorney act as the sections of the code to be repealed were not set out in their entirety as required by the state constitution, holding that the district attorneys had no power to sign informations.

Appellant further supports his theory referring to State ex rel. Stain v. Christensen, 84 Utah 185, 35 P.2d 775 (1934). In Christensen, three men each claimed to be the State Treasurer. Mr. Christensen had been elected treasurer in 1928, posted bond and held the office. In 1932, Mr. Stain was elected treasurer, but as he failed to post bond Mr. Christensen refused to turn the office over to him. During 1932, the legislature passed the antecedent of section 52-2-1 which provides that an office becomes vacant should the holder fail to post bond. Relying on this vacancy statute, the governor appointed Mr. Hoge treasurer. Mr. Christensen also refused to turn over the office to him. The court held that Mr. Hoge was the treasurer, that Mr. Stain had never held the office and that Mr. Christensen had properly held over until the matter was settled but now must give up the office to Mr. Hoge who had been appointed to the vacant office and had complied with all of the requirements for occupying it, including filing a bond. Some consideration was given in dissent to the issue of de facto officers, but the majority pointed out that Mr. Stain, “is not, and has not been, in possession of the office of State Treasur[1139]*1139er.” Christensen, 84 Utah at 202, 35 P.2d at 782.

Neither case relied on by Defendant is similar to the facts presented in this appeal. In Beddo, there was no office to hold. The statute creating the office of district attorney was void. In Christensen, the question was who held the office of state treasurer, not whether the acts of the treasurer were valid. In the case before us attorney Burns assumed a constitutionally established office and performed its functions.

We find this case more akin to Vance v. Fordham, 671 P.2d 124 (Utah 1983), cert. denied, 465 U.S. 1025, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984).3 In that case the court upheld the actions of an administrative licensing authority even though one of its members lacked statutory qualifications. The court concluded that there was no jurisdictional defect because the member was a de facto officer. The Vance court cited Hussey v. Smith, 99 U.S. 20, 25 L.Ed. 314 (1878), in its decision. In Hus-sey, the United States Marshal foreclosed on and sold property in the Utah Territory though it was later determined that he had no authority to do so. In upholding the sales the United States Supreme Court stated:

An officer de facto is not a mere usurper, nor yet within the sanction of law, but one who, colore officii, claims and assumes to exercise official authority, is reputed to have it, and the community acquiesces accordingly.

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Bluebook (online)
814 P.2d 1136, 164 Utah Adv. Rep. 48, 1991 Utah App. LEXIS 92, 1991 WL 115101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gambrell-utahctapp-1991.