Provo City v. Gedo

2024 UT App 116
THE UTAH C OURT OF APPEALS
PROVO C ITY ,
Appellant,
v.
M IGUEL D AVID GEDO,
Appellee.
Opinion
No. 20230687-CA
Filed August 15, 2024
Fourth District Court, Provo Department
The Honorable James R. Taylor
The Honorable Robert A. Lund
No. 191403472
J. Brian Jones, Stephen H. Schreiner, Matthew M.
Griffiths, Nicholas Muhlestein, Eric R. Lemus, and
Robert M. Trombly, Attorneys for Appellant
Neil D. Skousen, Attorney for Appellee
JUDGE R YAN M. HARRIS authored this Opinion, in which
JUDGES JOHN D. LUTHY and A MY J. O LIVER concurred.
HARRIS, Judge:
¶1 	After a two-day trial, a jury convicted Miguel David Gedo
on two counts of sexual battery. But it was later discovered that
the trial court lost—or never made—the audio recording of the
trial. Based largely on the lack of a transcript, the trial court
granted Gedo’s request for a new trial. Then, on the day the new
trial was scheduled to begin, the trial court dismissed the case
altogether, concluding that the statute of limitations had run on
the charged crimes. Provo City (the City) now appeals, and
challenges both the trial court’s order dismissing the case as well
as the order granting Gedo a new trial. We agree with the City
that the trial court erred by dismissing the case as untimely filed.

Provo City v. Gedo
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But we discern no abuse of discretion in the trial court’s grant of
Gedo’s request for a new trial, and we therefore remand the
matter so that the new trial can be held.
BACKGROUND
¶2 	In 	October 	2017, 	the 	City 	charged 	Gedo 	with 	two
misdemeanor counts of sexual battery related to events alleged to
have occurred in June or July 2017. According to the City, Gedo
inappropriately 	touched 	a 	woman 	who 	worked 	under 	his
supervision. On November 21, 2019, the assigned judge dismissed
that case, without prejudice to refiling, when the City’s witnesses
failed to appear at a scheduled preliminary hearing.
¶3 	Later that very same day—November 21, 2019—the City
filed a new criminal case against Gedo, the one that gives rise to
this appeal. In that case, the City again charged Gedo with two
misdemeanor counts of sexual battery related to events alleged to
have occurred in June or July 2017. Both sides agree that the
second case concerns the same charged conduct as the first case,
and that it simply represents the refiling of the charges that were
dismissed without prejudice in the first case.
¶4 	Gedo later filed a motion to dismiss the refiled case,
pointing out that the applicable limitations period is two years
following commission of the alleged crime, and asserting that the
limitations period had therefore expired in June or July 2019,
months before the case was refiled. In response, the City argued
that the limitations period had not expired because the filing of
the earlier case had tolled the running of the limitations period.
The trial court—Judge Taylor, at the time—agreed with the City
and 	denied 	Gedo’s 	motion, 	explaining 	that 	there 	is 	“clear
precedent authority in Utah that when prosecution of an incident
[is] commenced and then it is terminated before conviction, then
the statute of limitations is tolled during that period.”

Provo City v. Gedo
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¶5 	The case was later reassigned to Judge Lund, and it
eventually proceeded to a two-day jury trial. At the conclusion of
the trial, the jury convicted Gedo on both counts. A few weeks
later, Gedo filed a pro se motion seeking new counsel, asserting
that his trial attorney (Trial Counsel) had performed deficiently.
Among other things, Gedo claimed that Trial Counsel failed to
meet with him “in person until one hour before trial” and that
despite having provided his contact information, Gedo rarely
heard from Trial Counsel. In particular, Gedo asserted that Trial
Counsel had been unprepared for trial and had failed to lodge
certain 	objections. 	With 	regard 	to 	these 	objections, 	Gedo’s
allegations were quite specific: he asserted that Trial Counsel had
failed to object to, among other things, the City’s introduction of
certain evidence Gedo believed hadn’t been properly disclosed,
certain 	statements 	the 	prosecutor 	made 	during 	closing
arguments, and the seating of several jurors. After Gedo’s filing,
Trial Counsel moved to withdraw, and the court later appointed
new counsel (Post-Trial Counsel).
¶6 	Soon after being appointed, Post-Trial Counsel requested a
copy of the audio recording of the trial so that he could create a
transcript and begin investigating Gedo’s allegations regarding
Trial Counsel’s performance. Two weeks passed, and no audio
recording arrived, so Post-Trial Counsel sought and obtained
additional time within which to “procure the evidence and
transcripts necessary” to support a motion for a new trial. In that
filing, Post-Trial Counsel stated that Gedo had informed him that
Trial Counsel had performed deficiently in several respects—
including failing to investigate the case, failing to call witnesses,
and failing to make timely objections—and he argued that, if
those assertions were true, a new trial would be warranted, but
he asked for leave to supplement this nascent request for a new
trial with a more fulsome brief once he received the recording.
¶7 	But 	the 	requested 	audio 	recording 	never 	arrived.
According to an email from court staff, there existed “some

Provo City v. Gedo
20230687-CA 	4 	2024 UT App 116
recording . . . from day 2” of the trial, but court staff had “been
unable to locate the recording.” The record submitted to us on
appeal does not contain any further explanation of the reasons
why no recording of the trial exists. All parties agree, however,
that there is no recording and that—as the City puts it—“the loss
of the trial transcript was an error on the part of the [trial] court.”
¶8 	Sometime later, Gedo filed a motion for a new trial,
invoking rule 24(a) of the Utah Rules of Criminal Procedure,
which allows a trial court to “grant a new trial in the interest of
justice if there is any error or impropriety which had a substantial
adverse effect upon the rights of a party.” In the motion, Gedo
pointed out that no transcript of the trial existed, and he asserted
that 	“reconstruction 	of 	the 	record 	would 	be 	seemingly
impossible.” 	Gedo 	maintained 	that 	the 	interest 	of 	justice
demanded a new trial here “because the lack of record makes it
impossible 	for 	any 	[c]ourt 	to 	determine 	whether 	Gedo’s
constitutional 	right 	to 	a 	fair 	trial” 	was 	violated. 	The 	City
acknowledged the absence of a transcript, but it nevertheless
opposed Gedo’s motion, asserting that Gedo had “not shown any
nonspeculative prejudice resulting from gaps in the trial record.”
¶9 	After full briefing and oral argument, the trial court
granted Gedo’s motion and ordered that a new trial be held. In
making its oral ruling, the court noted that some aspects of Trial
Counsel’s performance had “raised a red flag” in the court’s mind
regarding Trial Counsel’s effectiveness, and the court offered its
view that Trial Counsel had, at times, been “somewhat shooting
from the hip.” The court was specifically critical of Trial Counsel’s
level of preparation, but the court nevertheless stated that “there
was nothing in particular” about Trial Counsel’s actions during
the trial that “seem[ed] particularly deficient.” However, the
court noted that it had invited Trial Counsel to respond in writing
to Gedo’s pro se allegations of deficient performance and that
Trial Counsel hadn’t filed anything, a fact the court interpreted as
“corroborat[ion of] Mr. Gedo’s contentions.” And finally, the

Provo City v. Gedo
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court noted that because of the missing audio recording of the
trial, there was “no way for Mr. Gedo or [Post-Trial Counsel] to
recreate the record to analyze the effectiveness of [Trial Counsel’s]
performance at trial.” For all those reasons, taken together, the
court ordered that a new trial be held, and it scheduled that trial
to begin on April 25, 2023.1
¶10 	After business hours on April 24, the day before trial was
to start, Gedo filed another motion to dismiss the case, asserting
again—as 	he 	had 	at 	least 	once 	before, 	through 	previous
counsel2—that the City had filed the case more than two years
after the alleged conduct occurred and that the case was therefore
time-barred. The next morning, before the City had a chance to
file any written response to Gedo’s latest motion, the trial court—
this time, Judge Lund—granted the motion to dismiss, explaining
in an oral ruling that because the case was filed “two years and
four months” after the charged conduct, the case was untimely
filed. Although the record indicates that the court had “met with
counsel in chambers,” off the record, to discuss the motion, the
1. Although it had the right to do so, the City did not immediately
appeal the court’s order granting Gedo a new trial. See Utah Code
§ 77-18a-1(3)(f) (stating that the “prosecution may, as a matter of
right, appeal from . . . an order granting a new trial”).
2. In addition to the previous motion that Judge Taylor ruled on,
see supra ¶ 4, Gedo had also filed a second previous motion—this
one made through a different attorney and filed after Judge Lund
had taken over the case—again asking the court to dismiss the
case on statute of limitations grounds. But Gedo withdrew this
second motion just a few days after he filed it, and he did so,
through counsel, on the record at a hearing before Judge Lund.
The record submitted to us does not include a transcript of that
hearing, so we do not know the reason for Gedo’s withdrawal of
the motion. At any rate, it does not appear that Judge Lund was
asked to make a ruling on that motion at that time.

Provo City v. Gedo
20230687-CA 	6 	2024 UT App 116
court did not afford the parties an opportunity to argue the merits
of the motion on the record. There is no indication in the record
that the court ever analyzed—as Judge Taylor had—whether the
running of the limitations period had been tolled by the filing of
the earlier case. When given a post-ruling opportunity to “make a
record,” the City stated simply that it had “oppose[d]” the motion
and that it was “only given [the] motion 12 hours before court and
[was therefore] not given proper time to be able to respond.” The
court was unpersuaded by that objection, and it later ordered the
entire case dismissed.
ISSUES AND STANDARDS OF REVIEW
¶11 	The City now appeals, and challenges both the trial court’s
order of dismissal as well as its order granting Gedo’s motion for
a new trial. We review for correctness the court’s order dismissing
the case on statute of limitations grounds. See State v. Lusk, 2001
UT 102, ¶ 11, 37 P.3d 1103 (“[W]hether the statute of limitations
has run is a legal conclusion to be reviewed for correctness.”).
¶12 	“Generally speaking, a trial court’s decision to grant or
deny a motion for a new trial is reviewed for an abuse of
discretion.” Peterson v. Hyundai Motor Co., 2021 UT App 128, ¶ 30,
502 P.3d 320 (quotation simplified), cert. denied, 509 P.3d 768 (Utah
2022). But in reality, “our standard of review in this context is
often more nuanced than that,” and depends on “the specific
grounds 	upon 	which 	a 	new 	trial 	was 	sought” 	and, 	more
particularly, on “whether the party is challenging the trial court’s
determination as to whether a trial impropriety occurred at all or
is, instead, challenging the court’s determination as to whether
the identified error required a retrial.” Olé Mexican Foods Inc. v.
J & W Distrib. LLC, 2024 UT App 67, ¶ 25, 549 P.3d 663, petition for
cert. filed, June 10, 2024 (No. 20240622).
¶13 	Here, all parties agree that an error or irregularity occurred
in the administration of the trial: the court failed to make or

Provo City v. Gedo
20230687-CA 	7 	2024 UT App 116
maintain a record of the proceedings. Thus, the part of the order
that the City is challenging is the part in which the trial court
determined that a new trial was warranted, “in the interest of
justice,” because the court’s own error “had a substantial adverse
effect upon the rights of a party.” See Utah R. Crim. P. 24(a). In
situations 	like 	this 	one, 	where 	a 	trial 	court 	has 	made 	an
assessment that “the error or impropriety was significant enough
to warrant a retrial,” we “afford deference to a trial court’s
determination, reviewing [it] only for abuse of discretion.” See
Peterson, 2021 UT App 128, ¶ 32; see also State v. De La Rosa, 2019
UT App 110, ¶ 9, 445 P.3d 955 (stating that determinations about
whether a trial error had “a substantial adverse effect upon the
rights of a party” are “entirely within the discretion of the trial
court due to its advantaged position to judge the impact of legal
errors on the total proceedings” (quotation simplified)).
ANALYSIS
I. Motion to Dismiss
¶14 	The City’s first argument is that the trial court erred by
dismissing this case on timeliness grounds. As the City sees it, the
trial court got it right the first time when it denied Gedo’s earlier
motion and explained that the running of the limitations period
had been tolled during the pendency of the earlier-filed case. We
agree with the City.
¶15 	The statute of limitations applicable to this case—which
involves misdemeanor criminal charges—dictates that the City
was obligated to file the case “within two years after” the crimes
were allegedly committed. See Utah Code § 76-1-302(1)(b) (stating
that “a prosecution for . . . a misdemeanor other than negligent
homicide 	shall 	be 	commenced 	within 	two 	years 	after 	it 	is
committed”). The City alleges that Gedo committed the crimes in
question 	in 	June 	or 	July 	2017. 	Thus, 	absent 	tolling 	of 	the
limitations period, the City would have had to file charges against

Provo City v. Gedo
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Gedo before June or July 2019. And Gedo correctly points out that
this case wasn’t filed until November 2019.
¶16 	But under Utah law, the limitations period applicable in
criminal cases is tolled by the filing of an information. State v.
Strand, 674 P.2d 109, 110 (Utah 1983) (“The filing of an information
commences the action and thus tolls the running of the applicable
statute of limitations.”).3 Citing this principle of law, the City
asserts that the limitations period applicable here was tolled in
October 2017 when it filed the first criminal case against Gedo
related to these alleged crimes. The City points out that less than
four months of the two-year limitations period ran before the first
case was filed, and that the second case—this case—was filed on
the very same day that the first case was dismissed. Thus, in the
City’s view, its refiling of the case in November 2019 was timely
because at that point, only about four months (plus perhaps one
day) of the two-year limitations period had run.
¶17 	The City’s legal analysis is sound and is compelled by our
supreme court’s decision in Strand. Indeed, not even Gedo
disagrees—in his brief, he also cites Strand as controlling law, and
he concedes that “tolling may have applied” in this situation.
Thus, we conclude that the City timely refiled this case and that
there isn’t a statute of limitations problem here.
¶18 	Gedo, however, asserts that the City failed to preserve any
argument that the running of the limitations period was tolled. He
points out that the City’s only objection, apparent on the record,
in response to Gedo’s renewed motion was that the City had “not
[been] given proper time to be able to respond” to the motion.
From these facts, he argues that the City “failed to raise” a tolling
3. As far as we are aware, federal law is no different. See, e.g.,
United States v. Qayyum, 451 F.3d 1214, 1218 (10th Cir. 2006) (“The
filing of an indictment tolls the limitations period for the charges
contained in the indictment . . . .” (quotation simplified)).

Provo City v. Gedo
20230687-CA 	9 	2024 UT App 116
argument in such a way as to give the trial court “the opportunity
to rule on it.” We disagree.
¶19 	As an initial matter, we acknowledge the City’s assertion
that it didn’t have a realistic opportunity to respond to Gedo’s
renewed motion. That motion was filed after business hours the
evening before trial was scheduled to begin, rendering the filing
of any meaningful written response by the next morning difficult,
if not impossible. Moreover, the record submitted to us indicates
that, while there was apparently some off-the-record discussion
in chambers about the motion the next morning before trial was
to begin, the trial court did not afford the City any opportunity to
argue the motion on the record. We are therefore skeptical of
Gedo’s assertion that the City’s actions on the morning of trial can
fairly be construed as a failure to preserve any particular defenses
to Gedo’s last-minute motion to dismiss.
¶20 	But more substantively, the City had fully briefed its
tolling argument previously, during the litigation regarding
Gedo’s earlier identical motion. In its written opposition to that
earlier motion, the City specifically argued that the limitations
period had not expired because the filing and pendency of the
earlier case had tolled the running of the limitations period. And
the 	trial 	court—Judge 	Taylor, 	at 	the 	time—made 	a 	ruling
accepting 	that 	argument, 	denying 	Gedo’s 	motion 	precisely
because there exists “clear precedent authority in Utah that when
prosecution 	of 	an 	incident 	[is] 	commenced 	and 	then 	it 	is
terminated before conviction, then the statute of limitations is
tolled during that period.” Thus, the City not only raised the
tolling argument in a way that gave the trial court an opportunity
to rule on it, the court actually did rule on it. This is sufficient to
preserve the issue for our review on appeal, because—for present
purposes—it does not matter that the tolling argument was
expressly raised to Judge Taylor rather than to Judge Lund: both
judges represented the same judicial office. See Build, Inc. v. Utah
Dep’t of Transp., 2018 UT 34, ¶ 31, 428 P.3d 995 (stating that a

Provo City v. Gedo
20230687-CA 	10 	2024 UT App 116
“successor judge” who takes over a case from a predecessor is
“the same judicial officer as the judge” whom he or she succeeded,
and that appellate courts indulge the “fiction . . . that there is no
such thing as a predecessor or successor—just the district court”
(quotation simplified)); see also Jones & Trevor Mktg., Inc. v. Lowry,
2010 UT App 113, ¶ 14, 233 P.3d 538 (stating that “two judges”
who presided over the same case at different times were certainly
“different persons” but represented “a single judicial office”
(quotation simplified)), aff’d, 2012 UT 39, 284 P.3d 630.
¶21 	The 	City’s 	tolling 	argument 	was 	therefore 	properly
preserved for our review on appeal, and not even Gedo asserts
that the argument is incorrect on its merits. We therefore conclude
that the trial court erred by dismissing the case on statute of
limitations grounds, and we reverse the court’s dismissal order.
II. Motion for a New Trial
¶22 	Because we find merit in the City’s argument that dismissal
of the case was improper and have now revived the case, we must
examine the City’s second assertion: that the trial court abused its
discretion by ordering that a new trial be held. As the City sees it,
the trial court’s new-trial order should be vacated and the guilty
verdict 	from 	the 	first 	trial 	reinstated. 	We 	reject 	the 	City’s
arguments and affirm the court’s order granting a new trial.
¶23 	Gedo’s motion for a new trial was grounded in rule 24(a)
of the Utah Rules of Criminal Procedure, which allows trial courts
to “grant a new trial in the interest of justice if there is any error
or impropriety which had a substantial adverse effect upon the
rights of a party.” Here, all parties agree that an error or
impropriety occurred during Gedo’s trial: the court did not make
(or later lost) any audio recording of the trial, and no such
recording currently exists. The trial court determined that this
error had a substantial adverse effect on Gedo’s rights and that
Gedo was therefore entitled to a new trial in the interest of justice.
As noted, we review this determination deferentially, for abuse of

Provo City v. Gedo
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discretion. See State v. De La Rosa, 2019 UT App 110, ¶ 9, 445 P.3d
955; see also State v. Torres-Orellana, 2021 UT App 74, ¶ 47, 493 P.3d
711 (Harris, J., concurring) (“There is simply no jurist better
positioned to assess whether the interest of justice requires a new
trial, and whether a trial error or impropriety has caused a
substantial adverse effect on the defendant’s rights, . . . than the
jurist who just finished personally observing the entire warp and
weft of trial.” (quotation simplified)), cert. granted, 502 P.3d 268
(Utah 2021).
¶24 	Because the error in question involved loss of the trial
transcript, the trial court analyzed the situation by reference to
State v. Martinez, 2021 UT App 11, 480 P.3d 1103, a case in which
we applied a three-part test in assessing a defendant’s request for
“a new trial based on an inadequate record.” Id. ¶ 34. First, a
defendant “must show that the [trial] court erred in creating a
record of the proceedings.” Id. Second, a defendant “must show
that the record cannot be reconstructed, through no fault of [their]
own.” Id. And third, a defendant “must show prejudice, meaning
that any remaining gaps in the record substantially affect [the]
ability to appeal a preserved issue.” Id.; see also State v. Menzies,
845 P.2d 220, 228 (Utah 1992) (noting that the “mere existence” of
transcription errors “does not mandate a new trial” and that,
instead, prejudice must also be shown); State v. Russell, 917 P.2d
557, 559 (Utah Ct. App. 1996) (stating that defendants are not
“entitled to a new trial whenever there is a gap in the record” and
that, instead, they must show “that a specific error occurred and
that the missing record was critical to its resolution”), cert. denied,
925 P.2d 963 (Utah 1996).
¶25 	The first two parts of this test are clearly met here. As
noted, all parties agree that the trial court erred by failing to
ensure that a record of the proceedings was made. And where, as
here, it is the entire transcript of a multi-day trial that is missing—
as opposed to just some small portion of a long trial, or the entire
transcript of a very short hearing—we agree with Gedo that,

Provo City v. Gedo
20230687-CA 	12 	2024 UT App 116
without holding a new trial, the record cannot meaningfully or
practicably be reconstructed. See State v. Tunzi, 2000 UT 38, ¶ 3,
998 P.2d 816 (holding that when one entire day of a two-day trial
transcript was missing, the record could not be practicably
reconstructed, and noting that while “reconstruction of the record
may be appropriate in circumstances where only a minor portion
of the record is missing, such an attempt, in our experience, is
unduly burdensome for the trial court and the parties when a
major portion of the record is missing”); see also State v. T.R., 2002
UT App 178U, paras. 1–3 (per curiam) (holding that where the
entire 	trial 	record 	was 	unavailable 	because 	two 	courtroom
microphones had not functioned during the trial, any attempt to
reconstruct the record would be “impossib[le] and futil[e]”).
¶26 	Thus, the issue here is whether Gedo can show that he has
suffered prejudice from the lack of a trial transcript, a showing
that ordinarily requires appellants to demonstrate that “any
remaining gaps in the record substantially affect [their] ability to
appeal” an issue that they would be otherwise entitled to appeal.
See Martinez, 2021 UT App 11, ¶ 34. On this record, we discern no
abuse of discretion in the trial court’s (at least implicit) conclusion
that Gedo had suffered prejudice.4
4. While the court made no express mention of prejudice, the
court’s statements clearly encompass at least an implied prejudice
determination. In particular, the court noted that Gedo had raised
specific 	allegations 	of 	ineffective 	assistance 	of 	counsel, 	and
concluded that, because of the missing audio recording, there was
“no way for Mr. Gedo or [Post-Trial Counsel] to recreate the
record 	to 	analyze 	the 	effectiveness 	of 	[Trial 	Counsel’s]
performance at trial.” Where, as here, a trial court’s “ruling is
apparent from the record,” there is no need to “remand for more
precise findings.” See State v. Robles-Vasquez, 2015 UT App 108,
¶ 9, 349 P.3d 769; see also Park City Mun. Corp. v. Woodham, 2024
(continued…)

Provo City v. Gedo
20230687-CA 	13 	2024 UT App 116
¶27 	Recall 	that 	Gedo 	filed 	a 	pro 	se 	motion—before
appointment of Post-Trial Counsel and before anyone knew that
the 	audio 	recording 	was 	unavailable—asserting 	that 	Trial
Counsel had performed deficiently in at least two particulars: that
he had been unprepared for trial and had failed to lodge certain
specific objections. And Post-Trial Counsel followed up by later
introducing a third alleged deficiency: that Trial Counsel had
failed to call certain witnesses. The trial judge—the person who
presided over and sat through the trial—believed these claims to
be at least colorable; indeed, that judge independently questioned
Trial Counsel’s preparedness and added his own observation that
Trial Counsel had been “shooting from the hip.” And he viewed
Gedo’s claims as “corroborate[d]” by Trial Counsel’s failure to
take the court up on its invitation to file a brief.
¶28 	Moreover, Gedo’s specific ineffectiveness allegations—
especially the one alleging that Trial Counsel failed to lodge
certain 	objections—are 	dependent 	on 	a 	trial 	transcript 	for
verification. While two of the claims (failure to investigate and call
witnesses) could conceivably be at least partially supported
through alternative means (e.g., affidavits), the absence of a trial
transcript makes successful presentation of even these claims
much 	harder 	because 	it 	prevents 	Post-Trial 	Counsel 	from
assessing 	the 	thoroughness 	of 	Trial 	Counsel’s 	witness
examinations 	and 	the 	tenor 	of 	his 	questioning. 	But 	most
significantly, the claim dealing with asserted failures to object is
entirely dependent on a transcript for its efficacy, because there is
no other reliable way to prove that Trial Counsel did (or did not)
lodge the objections in question, and no other realistic way to
show the 	context in 	which 	the 	opportunity 	to 	lodge those
objections arose. On this record, Gedo’s allegations are specific
enough, and dependent enough on a trial transcript for proof, that
his efforts cannot fairly be described as “fishing for error.” See
UT 3, ¶¶ 17–18, 545 P.3d 221 (stating that “courts can rule
expressly or by necessary implication” (quotation simplified)).

Provo City v. Gedo
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Russell, 917 P.2d at 559 (stating that defendants are not entitled to
“a complete record so appellate counsel can go fishing for error”
but, instead, are only entitled to “a record adequate to review
specific claims of error already raised”).
¶29 	The City resists this conclusion by invoking the principle
of law—sometimes referred to as the “rule of regularity”—under
which “we presume the regularity of the proceedings below”
when there is a problem with the adequacy of the record on
appeal. See State v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278. But
here, that rule works against the City—the appellant here—and
not in its favor. In many cases in which the rule of regularity is
invoked, the appellant is a criminal defendant who is challenging
the legality of a conviction following trial. See, e.g., id.; accord State
v. Burnside, 2016 UT App 224, ¶ 54, 387 P.3d 570. Here, however,
it is the City—and not the defendant—who is the appellant, and
the order being challenged is not Gedo’s conviction and sentence
but, instead, the trial court’s order granting Gedo’s motion for a
new trial. In this situation, to the extent that the rule of regularity
has any application at all—and we are not convinced that it
does—that rule operates to bolster the trial court’s order granting
a new trial. In the absence of a trial transcript showing the
contrary, 	we 	will 	presume 	the 	correctness 	of 	the 	implicit
determination made by the trial court—the judicial officer who
presided over and observed the very trial whose transcript we do
not have—that the error in question “had a substantial adverse
effect upon” Gedo’s ability to meet his burden of demonstrating
the ineffective assistance of Trial Counsel. See Utah R. Crim. P.
24(a); see also Pritchett, 2003 UT 24, ¶ 13 (“When crucial matters
are not included in the record, the missing portions are presumed
to support the action of the trial court.” (quotation simplified)).
¶30 	Accordingly, 	on 	this 	record 	we 	discern 	no 	abuse 	of
discretion in the trial court’s determination that the court’s own
recording error had a substantial adverse effect on Gedo’s rights,

Provo City v. Gedo
20230687-CA 	15 	2024 UT App 116
or in the court’s follow-on determination that, in the interest of
justice, a new trial was warranted.
CONCLUSION
¶31 	With regard to the statute of limitations issue, the trial
court got it right the first time: the pendency of the first criminal
case tolled the running of the limitations period, and therefore the
refiled information was not untimely. Accordingly, the court
erred 	when 	it 	later 	ordered 	the 	refiled 	case 	dismissed 	on
timeliness grounds. But the court did not abuse its discretion
when it ordered that a new trial be held due to the court’s own
failure to make or preserve an audio recording of the trial.
¶32 	For these reasons, we reverse the court’s order of dismissal
but affirm its order granting Gedo a new trial, and we remand this
matter to the trial court so that the new trial may take place.