State v. Yates

BENCH, Judge

(concurring in result):

I agree that, under controlling supreme court case law, Yates should be resentenced to a class B misdemeanor. See State v. Saxton, 30 Utah 2d 456, 459-60, 519 P.2d 1340, 1342 (1974); State v. Tapp, 26 Utah 2d 392, 394-95, 490 P.2d 334, 336 (1971); Belt v. Turner, 25 Utah 2d 230, 232-33, 479 P.2d 791, 792-93, aff'd on reh’g, 25 Utah 2d 380, 381-82, 483 P.2d 425, 426 (1971). I am concerned, however, about sending the wrong message to those who have violated the law.

If Yates had presented himself for sentencing when ordered by the court, he properly would have been sentenced to a class A misdemeanor. Rather than appearing in a timely fashion, however, Yates became a fugitive from justice. It took a bench warrant and a subsequent arrest to get-him to appear for sentencing. Meanwhile, the legislature had amended the relevant statute. It seems to me unwise and shortsighted to reward Yates for his flight from justice by giving him the benefit of the amended statute. Nevertheless, we are bound by existing supreme court ease law. State v. Menzies, 889 P.2d 393, 399 n. 3 (Utah 1994) (stating vertical stare decisis requires lower court to strictly follow higher court’s prior ruling), cert. denied, — U.S. -, 115 S.Ct. 910, 130 L.Ed.2d 792 (1995).

I therefore concur only in the result.