State v. Miguel Angel Lara

This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, No. 20030939
Plaintiff and Petitioner,
v.
Miguel Angel Lara,
F I L E D
Defendant and Respondent. November 4, 2005
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Third District, Salt Lake
The Honorable Leslie A. Lewis
No. 011900098
Attorneys: Mark L. Shurtleff, Att’y Gen., Laura B. Dupaix,
Asst. Att’y Gen., Salt Lake City, for plaintiff
Joan C. Watt, John D. O’Connell, Jr., Salt Lake City,
for defendant
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On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
¶1 We granted certiorari in this matter to determine
whether the court of appeals had the authority to reinstate Mr.
Lara’s appeal after it had dismissed his prior appeal and issued
a remittitur. We hold that it did and affirm.
BACKGROUND
¶2 Mr. Lara, a sixteen-year-old, was charged with
aggravated robbery under the Serious Youth Offender Act (“SYOA”).
Utah Code Ann. § 78-3a-602 (1996). The SYOA allows a juvenile to
be bound over and charged as an adult in the district court for
serious charges unless the juvenile can satisfy certain
conditions, commonly known as “retention factors,” which would
require the juvenile court to retain jurisdiction. The juvenile
court found that these conditions were not met and thus bound
over Mr. Lara.
2005 UT 70

No. 20030939 2
¶3 Mr. Lara asked the district court to quash the
bindover, challenging the juvenile court’s ruling that he had not
met the retention factors. The State argued that as a final and
appealable order, the only proper venue to challenge the bindover
was the court of appeals. However, the district court judge
indicated that she had jurisdiction to address the motion to
quash and suggested that she disagreed with the juvenile court’s
decision to bindover Mr. Lara. However, the judge felt she could
not address the motion to quash so long as the appeal was pending
in the court of appeals, and indicated that Mr. Lara should
withdraw his appeal to the court of appeals if he wished for her
to rule on his motion.
¶4 On February 14, 2001, Mr. Lara filed a motion with the
court of appeals to voluntarily dismiss his appeal. As required
by Utah Rule of Appellate Procedure 37(b), the motion to dismiss
was accompanied by Mr. Lara’s affidavit stating the following:
(1) I am the Defendant in the above case, (2)
It is my desire to withdraw my appeal at this
time, (3) I am aware that I have the right to
appeal my conviction and sentence to the Utah
Court of Appeals; however, I do not wish to
pursue this appeal, (4) I understand that
once this appeal is withdrawn, it cannot be
reinstated, (5) It is my desire to waive any
and all rights to the appeal docketed in this
case, (6) I am doing this knowingly and
voluntarily and have not been threatened or
otherwise induced in any way to withdraw this
appeal, and (7) I have consulted with my
attorney with respect to this withdrawal and
feel that it will not benefit me to pursue
this appeal.
¶5 On March 6, 2001, the district court judge issued a
memorandum decision in which she ruled that she did not have
jurisdiction to review the bindover order and that Mr. Lara’s
only option was to seek appellate review of the order. Because
Mr. Lara had withdrawn his appeal, the trial court’s decision
also stated that Mr. Lara’s appeal was reinstated. Mr. Lara did
not, however, file a motion with the court of appeals to
reinstate his appeal nor did he seek to withdraw his motion to
dismiss it. Eventually, Mr. Lara pled guilty in the district
court to second degree felony theft on the condition that he be
permitted to challenge the juvenile court’s bindover order on
appeal.

3 No. 20030939
¶6 When Mr. Lara filed his appeal, the State claimed that
the court of appeals did not have jurisdiction to hear the case
because once the juvenile court binds over a case to district
court, an appellate court has no jurisdiction to hear the
challenge unless that order is timely appealed. Additionally,
the State claimed that remittitur issued after Mr. Lara’s
voluntary withdrawal of his appeal to the court of appeals, and
that following remittitur the court of appeals lacked
jurisdiction to reinstate the appeal. The court of appeals
rejected these arguments. It concluded that Mr. Lara had not
knowingly and voluntarily withdrawn his appeal due to the
district court’s misleading assurances of the retention of some
right to appeal. After reinstating the appeal, the court
reversed the juvenile court’s bindover order, finding that
Mr. Lara had met the required retention factors.
¶7 The State petitioned for writ of certiorari. We
granted certiorari to determine whether the court of appeals had
authority to reinstate Mr. Lara’s appeal after it had dismissed
his earlier appeal and issued a remittitur.
ANALYSIS
¶8 To invoke appellate jurisdiction after an appeal has
been dismissed a party must establish the existence of two
components: jurisdictional authority and a procedure to access
it. Mr. Lara claims a constitutional basis for reclaiming
appellate jurisdiction, based on his constitutionally protected
right to appeal guaranteed to criminal defendants in Utah’s
Declaration of Rights. Utah Const. art. I, § 12. He asserts
that this constitutional right would be infringed if he were
denied the right to appeal that he believed he preserved when he
entered his plea. To complement this claimed source of
jurisdiction, Mr. Lara offered three procedural alternatives to
open the door to the court of appeals: (1) reinstatement of his
direct appeal from the juvenile court bindover order, (2) review
of the district court’s ruling that it had jurisdiction over
Mr. Lara, or (3) consideration of Mr. Lara’s request for
extraordinary relief. The first two of these alternatives sought
access to the court of appeals’ appellate jurisdiction. In
contrast, had the court of appeals exercised its writ power in
aid of Mr. Lara it would have done so within the scope of its
original jurisdiction. Gates v. Taylor, 2000 UT 33, ¶ 3, 997
P.2d 903. The court of appeals elected to accept Mr. Lara’s
first option and reinstated his appeal.
¶9 The State contends that when the court of appeals
issued a remittitur following its dismissal of Mr. Lara’s appeal,

No. 20030939 4
it surrendered its jurisdiction. Because it had no jurisdiction
to reinstate Mr. Lara’s appeal, the court of appeals had no
authority to review the propriety of his bindover to district
court under the SYOA. In our view, these assertions misapprehend
the scope of appellate court jurisdiction and improperly inflate
the significance of remittitur as a limitation on that
jurisdiction.
¶10 At the outset we acknowledge the fundamental logical
truth that forms the conceptual foundation for the assertion that
remittitur strips the appellate court of jurisdiction. Appellate
courts do not enjoy unlimited power to review the actions of
trial courts and administrative agencies. The scope of appellate
court authority is bounded by constitutional and statutory grants
of jurisdiction and by court rules that give practical procedural
effect to the jurisdiction conferred by our Constitution and
legislative branch. Appellate courts cannot conjure
jurisdiction. Thus, when the original or appellate jurisdiction
of an appellate court is properly accessed and the court
completes its exercise of authority over a matter brought before
it, logic would suggest that the court relinquishes its hold on
jurisdiction and cannot regain it without the aid of a
satisfactory legal basis to do so.
¶11 Many of our cases reinforce our commitment to honoring
the limitations of appellate jurisdiction. Under the holdings in
these cases, we have characterized as “jurisdictional” in nature
attempts to access appellate courts without an adequate
constitutional or statutory justification and turned them away.
For example, we have designated as “jurisdictional” failures to
file notices of appeal within the allotted time, see, e.g., State
v. Putnik, 2002 UT 122, 63 P.3d 91; Utah Dep’t of Bus.
Regulation, Div. of Pub. Utils. v. Pub. Serv. Comm’n, 602 P.2d
696 (Utah 1979), and attempts to obtain appellate review of non-
final orders. See, e.g., Loffredo v. Holt, 2001 UT 97, 37 P.3d
1070; Union Pac. R.R. Co. v. Utah State Tax Comm’n, 2000 UT 40,
999 P.2d 17.
¶12 In these cases the term “jurisdiction” is not intended
in every instance to mean that the issue before the appellate
court concerned a potential trespass into jurisdictional turf
outside that allotted by our Constitution or statute. For
example, when we turn away an untimely filed appeal on the
grounds that we do not have jurisdiction to entertain it, we are
granting “jurisdictional” effect to our own rules of procedure.
Utah R. App. P. 4.

5 No. 20030939
¶13 Similarly, remittitur is a procedure created pursuant
to the rule making authority vested in this court. Utah Code
Ann. § 78-2-4 (1986). Rule 36 of the Utah Rules of Appellate
Procedure is the only location in rule or statute in which
remittitur is taken up. The text of this rule does not explain
the purposes for remittitur; rather it focuses exclusively on the
timing and conditions of its issuance. While we have never had
the occasion to set out a comprehensive explanation of the
purpose and scope of remittitur, our more recent cases in which
remittitur plays a role suggest that insofar as remittitur has
jurisdictional implications, its primary effect is to provide a
clear indication that the trial court has regained jurisdiction
to take action consistent with the mandate. Chase Manhattan Bank
v. Principal Funding Corp., 2004 UT 9, ¶ 9, 89 P.3d 109.
¶14 In contrast, the State emphasizes the effect of
remittitur on appellate court jurisdiction, citing language from
Miller v. Southern Pacific Co., 24 P.2d 380 (Utah 1933), that
remittitur may be withdrawn only upon a “showing that the
remittitur was issued through fraud or inadvertence or was issued
prematurely or otherwise improperly.” Id. at 381.
¶15 Relying on the authority of Miller, the State contends
that, regardless of the existence of a jurisdictional
justification and a procedure to invoke it, the court of appeals
lacks jurisdiction because it issued its remittitur following Mr.
Lara’s voluntary withdrawal of his appeal. Thus, according to
the State, by issuing its remittitur the court of appeals erected
a barrier to its jurisdiction so imposing that it cannot be
surmounted even by jurisdiction with a constitutional pedigree.
¶16 The State’s jurisdictional reasoning is anchored in its
assertion that the act of issuing a remittitur has profound
jurisdictional consequences. Once remittitur occurs, whatever
jurisdiction remains vests in the court to which the remittitur
is directed. The appellate court is left with no jurisdiction.
While this overstates the State’s argument to the extent that
even the State presumably would concede that the appellate court
retains the jurisdiction necessary to compel compliance with the
terms of the remittitur, the unmistakable theme of the State’s
position is the mistaken notion that jurisdiction is a zero sum
game--that the acquisition of jurisdiction by one court must be
matched by a jurisdictional loss by another. This point of view
held sway with Judge Bench, who in his Lara dissent stated that
the court of appeals’ “remittitur ended our jurisdiction over any
appeal relating to the bind-over.” State v. Lara, 2003 UT App
318, ¶ 41, 79 P.3d 951.

No. 20030939 6
¶17 Without jurisdiction, the court of appeals had,
according to the State and the court of appeals dissent, no
authority to reinstate Mr. Lara’s appeal. The only way the court
of appeals could regain jurisdiction was to recall its
remittitur. This course of action was, according to Judge Bench,
unavailable because of the “bedrock principle” that the authority
to recall remittiturs is “extremely limited.” The State and the
Lara dissent join in their reasoning that with its jurisdiction
lost and the only recognized method to reestablish it foreclosed,
the court of appeals had no legitimate basis to revive Mr. Lara’s
appeal. This is a view that does not stand up to close
examination.
¶18 Our cases do not lend support to the State’s binary,
all or nothing, understanding of appellate jurisdiction. We have
held that trial courts retain limited jurisdiction after a notice
of appeal has been filed. White v. State, 795 P.2d 648, 650
(Utah 1990). In our view, the very concept of all or nothing
jurisdiction is flawed.
¶19 The narrow reading of the traditionally recognized
grounds for recalling a remittitur and the reluctance by courts
to apply them can be traced to the desire to discourage parties
disappointed with the outcome of appeals from mounting attempts
to undo a result long after a decision is handed down. Thus, as
the State correctly notes, an appellate court is without power to
recall a mandate “for the purpose of reexamining the cause on the
merits, or to correct judicial error.” 5 C.J.S. Appeal and Error
§ 1012 (2005). We do not take issue with this statement of law.
Indeed, a concern fundamental to our decisions in cases in which
a defendant appeals after being barred from walking into the
appellate court’s front door is the fear that by penetrating the
court’s walls with too many side and back doors we may compromise
the finality so essential to the integrity of the judicial
process and lead appellate courts to overstep their jurisdiction.
The remedy that we set out in this opinion is fashioned by giving
due consideration to the risks that would accompany a broad
invitation to challenge the voluntariness of motions to withdraw
appeals. We believe, however, that despite the importance our
rules play in the regulation and management of the appellate
courts, they cannot be interpreted in a manner that would stymie
a legitimate quest to assert important constitutional guarantees.
¶20 In fact, we find in article VIII, section 5 important
additional constitutional support supplementing the right to
appeal guaranteed by article I, section 12, which nullifies the
proposition that the issuance of a remittitur is an impenetrable
barrier to the reacquisition of appellate jurisdiction. This

7 No. 20030939
section, which is entitled “Jurisdiction of district court and
other courts - right to appeal” provides that “there shall be in
all cases an appeal of right from the court of original
jurisdiction to a court with appellate jurisdiction over the
cause.”
¶21 We read this constitutional language as an express
grant of appellate jurisdiction that provides procedural context
to and reinforces the substantive importance of the guarantee of
the right of appeal extended to criminal defendants. These twin
constitutional affirmations of the right to appeal are
independent of and override, in our view, whatever jurisdictional
significance might reside within rule 36 and jurisprudence
relating to remittiturs. Article I, section 12’s guarantee of
the right of criminal defendants to appeal occupies a place
within the Constitution’s Declaration of Rights, the repository
of our citizens’ most prized liberties. However, such a right,
no matter how sacrosanct, is of little worth without a procedure
to protect it. Article I, section 12, in concert with article
VIII, section 5, provides a unique connection between the article
I guarantee of the right to appeal and an express grant of
jurisdiction to give practical effect to that right.
¶22 Having determined that, as a result of the primacy of
the constitutional guarantee to an appeal, the issuance of a
remittitur does not foreclose an appellate court from reasserting
jurisdiction over a dismissed appeal, we turn to the question of
how to properly assess what constitutes an article I, section 12
violation which an appellate court can address through the
jurisdiction provided by article VIII, section 5. Over time we
have considered numerous appeals brought by criminal defendants
who ask us to reopen the door to our appellate courts. These
cases contain several common elements. First, they uniformly
concern challenges to a claim that a defendant has waived his
right to appeal. Next, almost without exception, defendants
contest the claims of waiver by contending that the alleged
waivers were not knowing and voluntary and that, therefore, the
defendants were denied their right to appeal guaranteed by
article I, section 12 of the Utah Constitution. Manning v.
State, 2005 UT 61, 122 P.3d 628; State v. Tuttle, 713 P.2d 703,
704 (Utah 1985).
¶23 Our recently decided case, Manning, illustrates the
difficulties and complications that accompany the task of
matching jurisdictional rationale to workable procedure where
appellate jurisdiction appears to have been forfeited. There, we
took up the question of how a defendant who had entered an
unconditional guilty plea and in so doing surrendered his right
to appeal could go about pursuing his claim that the apparent

No. 20030939 8
waiver of his right to appeal was not knowing or voluntary,
thereby violating article I, section 12.
¶24 Our opinion traversed terrain stretching from the
common law writ of coram nobis, through State v. Johnson, 635
P.2d 36 (Utah 1981), where we created the procedural sleight of
hand known as nunc pro tunc resentencing, across multiple
amendments to rule 65B, on into the realm of the Post Conviction
Relief Act, before alighting on a new remedy for restoring a
denied criminal appeal. The Manning remedy provides that the
time for filing an appeal may be reinstated to a defendant who
carries the burden of proving “that he has been
unconstitutionally deprived, through no fault of his own, of his
right to appeal.” Manning, 2005 UT 61, ¶ 31. Manning also
provides three non-exclusive examples of how its standard could
be met. Id.
¶25 Inevitably, the Manning examples are rooted in
circumstances that call into question the voluntariness of the
defendant’s alleged waiver of his right to appeal: the attorney’s
failure to act on a commitment to file an appeal, a failure to
advise a defendant of his right to appeal, and the defendant’s
diligent, blameless, but futile attempt to exercise his right to
appeal.
¶26 One of the lessons of Manning is that virtually every
claim of a denial of the right to appeal arises from the
forfeiture of the right to appeal by waiver countered by a claim
that the waiver was not voluntary. This characteristic appears
no less frequently in settings where, as here, a perfected appeal
has been dismissed after being withdrawn than under circumstances
where an appeal is never filed. Both confront us with the same
task of creating a method to test the merits of a claim that a
dismissed appeal was based on an unknowing or involuntary
withdrawal of the appeal that is practical, effective, and within
the bounds of our jurisdiction. Because our approach to the
dilemma of how to adequately protect the constitutional right to
appeal while preserving the integrity of the appellate process is
derived from our prior cases confronting this question, we will
review those cases before returning to set out the methods and
standards to guide appellate courts that confront applications to
revive appeals.
¶27 We have previously departed from a strict application
of the Miller remittitur recall standards in Tuttle. Tuttle
followed the pattern of claimed involuntariness common to cases
in which a defendant challenges the dismissal of his appeal.
There, we ordered the reinstatement of a prison escapee’s appeal

9 No. 20030939
after we had dismissed it.1 713 P.2d at 704. We did not
indicate in our opinion whether we had issued a remittitur of
Mr. Tuttle’s dismissal. Since under the appellate rules then in
effect a remittitur issued fifteen days after the dismissal, it
is more likely than not that it had issued and we did not
consider its issuance to be an impediment to the constitutional
reasoning that underlay our holding, for the reasons articulated
in this opinion. In Tuttle we exercised jurisdiction granted to
appellate courts by the Utah Constitution to make real the right
of appeal. We determined that an escape cannot result in a
conclusive assumption that the escapee has made an affirmative
decision to waive his constitutional right to appeal. Id. It is
difficult for us to imagine that the injection of the issuance of
a remittitur as a potential issue in Tuttle would have altered
either the analysis or the result. Tuttle stands for the high
degree of importance we afford the guarantee of the
constitutional right to appeal. We stated then, and we reaffirm
today, that we will carefully protect the right to appeal
guaranteed by article I, section 12.
¶28 The obvious question stemming from Tuttle, therefore,
is what precisely constitutes a voluntary and, consequently,
binding waiver of one’s right to appeal. This question was
partially answered in State v. S.H., 2002 UT 118, 62 P.3d 444.
S.H., a minor, was charged in juvenile court with aggravated
sexual assault and forcible sodomy. Id. ¶ 1. As here, the case
was bound over to the district court under the SYOA. Id. S.H.
appealed the bindover to the court of appeals, but later filed a
motion to voluntarily dismiss the appeal, which was granted. Id.
¶ 3. The district court eventually convicted S.H., and he
appealed. Id. ¶ 9. As part of that appeal, he claimed that the
juvenile court erred in its bindover decision. Id. ¶ 23. We
refused to allow his appeal because the Utah Rules of Appellate
Procedure require such an appeal to be filed within thirty days.
Id.
¶29 Neither our reaffirmation of the principles that form
the underpinnings of Tuttle, nor our rejection of the assertion
that the appellate court is wholly divested of jurisdiction upon
the issuance of a remittitur, answers without fuller explanation
how our determination that the court of appeals properly
1 We dismissed the appeal based on the presumption that
escape constituted a voluntary waiver of the right to appeal.
This ruling was consistent with previous holdings, such as Hardy
v. Morris, 636 P.2d 473 (Utah 1981), that were overruled by this
court’s decision in Tuttle.

No. 20030939 10
reinstated Mr. Lara’s appeal can coexist with our decision in
S.H.
¶30 The similarities between S.H. and this case are great and
acknowledged in both the majority and dissenting court of appeals
opinions. However, the determinative factor in S.H. is not the
motion to withdraw the appeal or the running of the period for
appeal; instead, it is the fact that these indices of waiver were
unaccompanied by evidence of involuntariness. The interests of
finality demand that there be certain instances where an
inference of voluntariness arises. These include allowing a
statutorily established time for appeal to run or a motion for
voluntary withdrawal of an appeal. The absence of such
presumptions would unduly and likely unlawfully expand appellate
jurisdiction beyond the bounds granted to appellate courts by our
Constitution and statute. However, we cannot permit our
jurisdictional reach to fall short of grasping claims of a denial
of the right to appeal based, as here, on a meritorious assertion
of involuntariness.
¶31 As our discussion of Manning and the considerations
relevant to evaluating justifications for reviving the
opportunity to file a time-lapsed appeal made clear, the issue of
voluntary waiver is present in some form in every application for
access to appellate review otherwise barred on jurisdictional
grounds. S.H. is no exception. Absent any apparent articulation
of a reason why S.H.’s withdrawal of his appeal was involuntary,
our affirmance of S.H.’s waiver of his right to appeal was
unremarkable. By contrast, whether Mr. Lara’s withdrawal of his
right to appeal the bindover was voluntary in light of the
representations made by the trial judge is at the center of the
controversy before this court.
¶32 Remaining to be answered is the question of how and
where the merits of a claim of involuntary waiver should be
evaluated. In Manning we held that a defendant may reset the
appeal clock if he can prove that the circumstances of his waiver
of appeal constituted an unconstitutional denial of his right to
appeal. This proof was to be presented to the trial court “based
on facts in the record or determined through additional
evidentiary hearings.” Manning, 2005 UT 61, ¶ 31. The trial or
sentencing court was the forum in which the Manning inquiry was
to occur. Of course, the option to conduct additional
evidentiary hearings can be easily exercised in trial courts.
This is not the case in appellate courts.
¶33 In Tuttle, S.H., and the court of appeals opinion
here, the assessment of the voluntariness of the waiver of the

11 No. 20030939
right to appeal was based exclusively on the contents of the
record. We express no opinion concerning the issue of whether
circumstances might arise in which the consideration of
additional evidence might be warranted in the context of
assessing the voluntariness of a withdrawn appeal, other than to
note the obvious difficulties associated with the selection of
forum where such evidence may be received and assessed.
CONCLUSION
¶34 The court of appeals acted properly when it reinstated
Mr. Lara’s appeal. The Utah Constitution provides appellate
courts with the jurisdiction to protect criminal defendants’
right to appeal. Because Mr. Lara’s waiver of his right to
appeal was involuntary, denying his request for reinstatement of
that right would constitute a violation of article I, section 12,
so the court of appeals was obligated to act within its
jurisdiction and provide Mr. Lara with an appeal. Accordingly,
we affirm the court of appeals.
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¶35 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring’s
opinion.