State v. Tyree

2000 UT App 350, 17 P.3d 587, 410 Utah Adv. Rep. 36, 2000 Utah App. LEXIS 105, 2000 WL 1827905
Court of Appeals of Utah·Decided December 14, 2000·No. No. 20000011-CA·Published·Cited by 4 cases

Opinion

OPINION

BENCH, Judge:

1 1 Defendant William Tyree appeals from the sentence imposed after a conviction for absconding, a third degree felony, in violation of Utah Code Ann. § 76-8-809.5 (1999). We affirm.

BACKGROUND

12 On August 10, 1999 Defendant, who was on parole for an unrelated offense, entered a guilty plea to absconding. Defendant requested a pre-sentence report be prepared prior to his sentencing, set for September 17, 1999. However, Defendant wanted the report to be prepared by an agency other than the Salt Lake County Office of Adult Probation and Parole (AP & P) because of a perceived conflict. The trial court granted Defendant's request and ordered either the Federal Probation Department or an office of AP & P outside of Salt Lake County to prepare the report.

T8 On September 14, 1999 the trial court continued Defendant's sentencing date to October 29, 1999 because the pre-sentence report was not yet available. Defendant's counsel did not object to the continuance. The matter was continued again on October 29 because Defendant had not been transported from the prison, where he was incarcerated on another offense. Again, Defendant's counsel did not object.

14 In November, Defendant filed an Objection to Sentencing with the trial court, claiming that the court had lost jurisdiction to sentence him. Counsel for the State and Defendant stipulated to a continuation until [589] November 19, 1999 to allow the State to respond to Defendant's motion. Sentencing was then continued to November 24, 1999 so Defendant could respond to the State's memorandum. On November 24, 1999, counsel argued their positions regarding the objection to sentencing and the judge denied Defendant's motion. Defendant was sentenced to a term of zero to five years in the Utah State Prison to run concurrently with the term he was already serving.

ISSUE AND STANDARD OF REVIEW

15 Defendant contends Rule 22(a) of the Utah Rules of Criminal Procedure is jurisdictional such that the sentencing court loses subject-matter jurisdiction over the case if the defendant is not sentenced within 45 days after conviction or entry of plea. The issue is one of statutory interpretation, which we review for correctness. See State v. Fixel, 945 P.2d 149, 151 (Utah Ct.App.1997).

ANALYSIS

{6 Defendant asserts that the trial court lost jurisdiction to impose sentence, pursuant to Rule 22(a) of the Utah Rules of Criminal Procedure. Defendant would have us ignore the precedential history in which the time for sentencing under predecessor statutes to Rule 22(a) has consistently been held to be directory and not jurisdictional. See, e.g., Kelbach v. McCotter, 872 P.2d 1033, 1035 (Utah 1994) ("the time fixed [for sentencing] by section 77-35-11 is not jurisdictional"); State v. Helm, 563 P.2d 794, 797 (Utah 1977) ("the limits so prescribed in the statute are not mandatory and jurisdictional, but are directory"); Rose v. District Court of Millard County, 67 Utah 526, 248 P. 486, 488 (1926) (holding court was not without jurisdiction to sentence defendant fourteen days after verdict when statute said sentencing must be within 10 days). Defendant asserts that Rule 22(a) differs significantly from Utah Code Ann. § 77-35-22(a) (1982) and § 7i-85-1 (1976), its predecessor statutes. We disagree.

T7 First, Defendant cites the expansion of the time for sentencing from 80 days to 45 days as supporting his position that the rule is jurisdictional, asserting that the enlarged time provides the court ample time for sentencing. In interpreting section T7-35-1 in Helm, the supreme court did not refer to the short time for sentencing as a basis for its decision that the time is directional only. Instead, the court indicated that "egregious injustices might result" if it were to read the statute as jurisdictional. Helm, 563 P.2d at 797. Expanding the length of time for sentencing from 10 days in section 77-85-1, to 30 days in section 77-85-22(a), to 45 days in Rule 22(a), most likely merely reflects the reality of a burgeoning criminal case load carried by courts and agencies preparing pre-sentence reports.

18 Next, Defendant points to the addition of the language "with the concurrence of the defendant." Utah R.Crim.P. 22(a). However, this addition actually supports a reading of the rule as directory and not jurisdictional. We have previously held that subject-matter jurisdiction cannot be waived. See Transworld Sys., Inc. v. Robison, 796 P.2d 407, 408 (Utah Ct.App.1990). If Rule 22(a) were truly jurisdictional, a defendant's concurrence could not extend the time. The expiration of the 45 days would be an absolute bar to the court's ability to retain jurisdiction over the matter and pronounce sentence.

€ 9 Defendant also contends that replacing "must" for "shall" indicates a more mandatory, and thus jurisdictional, standard. The previous statutes provide that the court "must" set a time for sentencing. See Utah Code Ann. § 77-85-1 (1976) and § 77-85-22(2) (1982). Rule 22(a) now states that the court "shall" set a time for sentencing. See Utah Rule Crim.P. 22(a). We find no indication that either word is more or less mandatory than the other. "Shall" and "must" have both been interpreted as mandatory, see Lyon v. Burton, 2000 UT 19, ¶ 76, 5 P.3d 616, and Board of Educ. of Granite Sch. Dist. v. Salt Lake County, 659 P.2d 1030, 1035 (Utah 1983), and as directory, see Kennecott Copper v. Salt Lake County, 575 P.2d 705, 706 (Utah 1978). The supreme court declared that " '[tlhere is no universal rule by which directory provisions may, under all cireumstances, be distinguished from those which are mandatory.'" Kennecott, 575 P.2d at 706 (quoting 1A Sutherland Statutory Construction § 25.08 (dth ed.)).

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State v. Tyree, 2000 UT App 350, 17 P.3d 587, 410 Utah Adv. Rep. 36, 2000 Utah App. LEXIS 105, 2000 WL 1827905 (Utah Ct. App. 2000).

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