State v. Amador

ORME, Judge

(concurring in the result):

I agree with my colleagues that the State is not entitled to appeal the trial court’s order terminating defendant’s probation and vacating the prior order to show cause concerning an alleged probation violation. I reach this conclusion, however, through less intricate analysis.

Section 77-35-26 “delineates a narrow category of cases in which the prosecution may take an appeal.” State v. Waddoups, 712 P.2d 223, 224 (Utah 1985). A trial court’s orders relative to the duration or terms of probation are not included within that “narrow category.” If the legislature had intended that the State could appeal from such orders, it would have said so with the same precision it described the other situations coming within the “narrow category.”

While such orders might have come within the scope of the prior statute as orders “made after judgment affecting the substantial rights of the state,” Utah Code Ann. § 77-39-4 (1953) (quoted in State v. Kelbach, 569 P.2d 1100, 1101 (Utah 1977)), the version of the statute governing this case contains no provision applicable to probation dispositions. It follows that the State is not authorized to bring the instant appeal and that it should therefore be dismissed.