State v. Garcia

805 P.2d 199, 152 Utah Adv. Rep. 39, 1991 Utah App. LEXIS 7, 1991 WL 9568

• Court: Court of Appeals of Utah
• Decided: January 23, 1991
• Docket: No. 900617-CA
• Status: Published

Opinion

This matter is before the Court upon appellant’s motion for certification to the Utah Supreme Court, filed 26 December 1990. Appellee stipulated to the motion. Appellant requests that the matter be certified to the Utah Supreme Court, pursuant to Rule 43, Utah R.App.P.

Rule 43(a) provides that the Court of Appeals may certify matters to the Supreme Court in eases over which the Court of Appeals has original appellate jurisdiction. The instant matter is an appeal from a judgment and conviction of aggravated burglary, a first degree felony. Utah Code Ann. § 76-6-203(2) (1989). The Utah Supreme Court has original appellate jurisdiction over appeals involving a conviction of a first degree felony.¹ Utah Code Ann. § 78-2-2(3)(i) (1989). Thus, this court lacks jurisdiction over the appeal and accordingly lacks jurisdiction to certify the appeal to the Supreme Court.

The notice of appeal herein should have designated the Supreme Court, rather than the Court of Appeals, as the appellate court having jurisdiction of the appeal. As the appeal was improperly pursued in this Court, IT IS HEREBY ORDERED that the matter is transferred to the Utah Supreme Court, pursuant to Rule 44, Utah R.App.P.

1 . However, under § 78-2-4 (1989) the Supreme Court may transfer non-capital first degree felonies to the Court of Appeals.