Rules of Criminal Procedure

URCrP 27. Stays pending appeal from courts of record. Amend. The amendments remove courts not of record from the rule. The process for courts not of record will be in new rule 27A. The amendments also make structural changes to help clarify the process for seeking a stay.
URCrP 27A. Stays pending appeal from courts not of record. New. This is a new rule specifically directed at appellate stays in justice court proceedings. The rule creates 3 different processes depending on the type of judgment appealed. Judgments with no jail time are automatically stayed. A notice of appeal on a judgment of incarceration less than 30 days serves as an automatic motion for a stay. In cases involving a judgment of 30 days or more, a motion must be filed. A judgment for incarceration of 30 days are more. There is a presumption in favor of a stay.
URCrP 38. Appeals from Justice Court to District Court. Amend. The amendments provide more detail on the process for appealing justice court judgments. The amendments describe the contents of the notice of appeal, the duties of the justice court when transferring the case, and the duties of the district in handling the appeal.

Utah Courts

View more posts from this author
8 thoughts on “Rules of Criminal Procedure
  1. Randall K. McUne

    I am worried about changing Rule 38(g) to (h) as it seems to make a somewhat clear rule (e.g., if defendant fails to appear, his appeal is dismissed) and turns it into a vague “the defendant has abandoned the appeal” rule. Will we get any guidelines as to when a defendant has abandoned his appeal? Clearly, if a defendant requests the remand, he has abandoned it, but what about the other two grounds allowed under the current version of the rule? How many failures to appear are required to constitute abandonment? Is abandonment a different standard than the current (g)(2) “fails to take steps necessary to prosecute the appeal”? Guidelines are especially necessary as this issue will likely never reach the Court of Appeals on direct appeal as it is not a ruling on the constitutionality of a statute or ordinance.

  2. Leslie Slaugh

    The proposal has schizophrenic capitalization.
    In rule 27, “notice of appeal” is in lower case.
    In Rule 27A, “Notice of Appeal” is capitalized in line 5, but not in lines 9 or 21.
    In Rule 38, “Notice” or “notice of appeal” are not capitalized in at least lines 8, 9, 12 (second use of “notice”), 29, and 39. The words are capitalized in lines 12 (first use of “notice”), 13, 21, and 26. Line 40 takes a middle approach, using “Notice of appeal.”
    I suggest lower case be used in all instances.

  3. Neal Hamilton

    In City of Monticello v. Christensen, 788 P.2d 513, 516 (Utah 1990), the Supreme Court stated that “it is settled that the right to an ‘appeal’ from a court not of record is satisfied for a trial de novo in a court of record.” This right to a de novo appeal has long been interpreted to require a justice court appeal to be triad anew in the district court, or “as if it originated there.” University of Utah v. Industrial Comm’n, 736 P.2d 630, 632 (Utah 1987) (quoting Denver & Rio Grande W. R.R. v. Public Serv. Comm’n, 98 Utah 431, 437, 100 P.2d 552, 555 (1940)).
    Justice Court appeals “get a fresh start” in the form of a trial de novo. Dean v. Henroid, 975 P.2d 946, 949 (Utah Ct. App. 1999) (quoting State v. Hinson, 966 P.2d 273, 277 (Utah Ct.App.1998)).
    The proposed addition of 38(e)(1)(D), 39(e)(2)(D), and 38(j) are contrary to the well established right to a trial de novo in that they permit justice courts to retain jurisdiction over these cases unless and until the district court makes a specific finding which divests the justice court of jurisdiction over cases on appeal.
    If these proposed changes are approved, and justice courts are permitted to retain jurisdiction over cases on appeal, appeals from justice courts will no longer tried as if they “originated in district court.” University of Utah, 736 P.2d at 632 (citation omitted). This change in treatment will fundamentally alter this “de novo” provision which has long satisfied the fundamental right to an appeal from a court not of record, and could jeopardize the constitutionality of our unique two tiered system of justice. Christensen, 788 P.2d at 516.

  4. Jessica Jacobs

    Rule 27(A) seems to try to do too much. I like the way the rule handles sentences of 30 days or less and see no reason why sentences of 30 days or more should be handled differently.
    Rule 38 – I think this rule should NOT be adopted. This rule ignores the fact that there are justice court judges who are NON-lawyers. It is imperative that the appeal from justice court remain as an appeal de novo.

  5. Paul DeWitt

    I believe Rule 38(h)should read:
    Other bases for remand- The district court may also remand to the JUSTICE court if finds the defendant has abandoned the appeal.

  6. Sam Newton

    I’m extremely concerned about this rule, as it completely ignores judicial precedent, gives the justice courts entirely too much discretion, and further convolutes what was already a complicated appeal process.
    I won’t rehash a lot of the comments that are already here, but will make one proposal which is significantly simpler.
    The Supreme Court has already held that a de novo appeal means that the case must start as if it originated in the District Court. The problems come up when the justice court incarcerates defendants. There are two problems: 1) the delays with appeals mean that many defendants will serve a substantial period of incarceration before their appeal will be heard. The rule attempts, somewhat to fix that problem, but the distinction between under 30 day and over 30 day sentences makes no sense. The person incarcerated for 45 days may spend 5 days to file his motion, 5 days waiting for the opposing memo and 5 days waiting for a hearing. He will spend 1/3 of his sentence waiting for a hearing. Then if the court denies his release, he has to now address it in the district court, potentially serving 25-30 days before he even has a hearing on the issue. 2) Justice court judges may want to incarcerate people whom they believe to be a danger to the community. Ostensibly, this rule attempts to fix both of these problems.
    I think there is a much simpler solution: upon filing the notice of appeal, the judgment of the justice court is automatically stayed. The person’s custody status is reverted back to the person’s status immediately prior to the justice court’s sentence. If that person was held on bail, then that would be the returned-to status. If that person was taken into custody by the court, then he or she would be released pending appeal. There could be one exception: if the justice court, by clear and convincing evidence, finds that the defendant poses an immediate risk of flight or danger to any other person, the court may keep the person in custody on reasonable bail. That order may be reviewed by the district court immediately.
    Such a proposal would simplify the whole process and give defendants the rights the Supreme Court has already authorized them, which is to litigate their cases as if they had started in the District Court.

  7. D. Michael Nielsen

    I would like to comment on the proposed change to URCP 27A involving stays pending appeal from courts not of record. I suggest the following:
    Please see the case of O’Brien vs. Krek, 2001 UT App 121; 2001 Utah App. LEXIS 165. As Judge Allphin opined, there is often a good reason for incarceration at the Justice Court level. The presumption in favor of a stay should be reversed. The presumption should favor continued incarceration and the District Court may choose to modify the same. Please bear in mind the fact that many, many first and second DUI convictions are sentenced in Justice Courts. This amended rule would have the effect of nullifying the mandatory incarceration provisions of Utah’s DUI statutes.
    If I can answer questions or if further comments would be helpful, please do not hesitate to contact me. My telephone numbers are as follows:
    Office: (801) 292-1818