DocketNumber： 20140329-CA
Judges： Christiansen, Kate, Toomey, Mortensen
Filed Date： 4/6/2017
Status： Precedential
Modified Date： 11/13/2024
2017 UT App 63
THE UTAH COURT OF APPEALS STATE OF UTAH, Appellee, v. MISTY DAWN JEPSON, Appellant. Opinion No. 20140329-CA Filed April 6, 2017 Third District Court, West Jordan Department The Honorable Bruce C. Lubeck No. 131401123 Nathalie S. Skibine and Daniel M. Torrence, Attorneys for Appellant Sean D. Reyes and Jeffrey S. Gray, Attorneys for Appellee JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in which JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN concurred. CHRISTIANSEN, Judge: ¶1 Misty Dawn Jepson (Defendant) entered a conditional guilty plea in district court to one count of unlawful possession of a financial transaction card, a third degree felony. On appeal, Defendant argues that the district court should have granted her motion to dismiss the charge because it arose from the same criminal episode as another charge to which she had previously pled guilty in justice court. We affirm. ¶2 In July 2013, a police officer (Officer) cited Defendant for retail theft after she concealed approximately $28 worth of merchandise in grocery bags as she exited a grocery store. At State v. Jepson that time, Officer learned that Defendant had an outstanding warrant and arrested her. While arresting Defendant, Officer discovered that she had several credit cards belonging to multiple individuals. Officer then transported Defendant to jail where she was booked on charges of retail theft and unlawful possession of financial transaction cards. Officer also contacted the owner of one of the credit cards. That person confirmed that he did not know Defendant and never gave anyone permission to use his credit card. ¶3 Five days later, Officer filed the retail theft citation in the Herriman Justice Court. The citation stated, as required by law, ‚This citation is not an information and will not be used as an information without your consent.‛ See Utah Code Ann. § 77-7- 20(2)(j) (LexisNexis Supp. 2013). Thereafter, in September 2013, the State filed an information in the Third District Court charging Defendant with retail theft, a class B misdemeanor, and unlawful possession of a financial transaction card, a third degree felony. See id. §§ 76-6-506.3, -602 (2012). Two days later, Defendant was transported from the jail to the Third District Court, where she was advised of the charges, received a copy of the information, waived its reading, and was appointed counsel. ¶4 Several weeks later, Defendant was transported to the Herriman Justice Court to appear on the retail theft citation. A city prosecutor was present at the hearing. The court advised Defendant of her rights, and she pled guilty to retail theft. At that hearing, Defendant signed a document entitled ‚Rights, Instructions, and Waiver Form‛ (the Waiver Form). The Waiver Form described Defendant’s various plea options and constitutional rights and contained sections describing Defendant’s right to withdraw her plea, the right to appeal, sentencing, and possible penalties. The justice court sentenced Defendant to sixty days in jail with credit for time served. ¶5 Thereafter, Defendant moved to dismiss the pending retail theft and unlawful possession of a financial transaction card charges in district court, arguing that those charges were 20140329-CA 22017 UT App 63
State v. Jepson barred under ‚the federal and state Double Jeopardy clauses‛ and Utah’s single criminal episode statute. See Utah Code Ann. § 76-1-403(1) (LexisNexis Supp. 2013). According to Defendant, she had already ‚been convicted in Herriman City Justice Court of ‘Retail Theft,’‛ and because ‚*t+he charges in the *district court] case [were] supported by the same police report, and were part of the same offense and criminal episode as the Herriman City Justice Court ‘Retail Theft,’‛ ‚these charges should all have been brought together.‛ ¶6 After a hearing, the district court dismissed the retail theft charge but denied Defendant’s motion to dismiss the unlawful possession of a financial transaction card charge. In its written order, the district court found, among other things, that the ‚Waiver Form *Defendant signed+ did not contain any language addressing waiver of the statutory right of the filing of an Information‛ and that Defendant did ‚not waive in writing the filing of an Information.‛ The court then concluded: Although a citation may be used in lieu of an information, so that the person cited may plead guilty or no contest and be sentenced or on which bail may be forfeited, the citation is not an information unless the person cited waives, by written agreement, the filing of the information. . . . [N]o facts were presented evidencing that Defendant waived, in writing, the filing of an information in the Herriman Justice Court case. (Citations omitted.) ¶7 Subsequently, Defendant entered a conditional guilty plea to the charge of unlawful possession of a financial transaction card, reserving the right to appeal the district court’s denial of her motion to dismiss based on the single criminal episode statute. The district court sentenced Defendant to a suspended 20140329-CA 32017 UT App 63
State v. Jepson prison term of zero to five years and placed her on probation for thirty-six months. Defendant appeals. ¶8 Defendant contends that ‚*t+he [district] court erred when it determined that the single criminal episode statute did not bar subsequent prosecution‛ and denied her motion to dismiss. ‚A trial court’s decision to grant or deny a motion to dismiss presents a question of law, which we review for correctness.‛ State v. Selzer,2013 UT App 3
, ¶ 14,294 P.3d 617
(citation and internal quotation marks omitted). ‚‘[C]orrectness’ means the appellate court decides the matter for itself and does not defer in any degree to the trial judge’s determination of law.‛ State v. Anderson,929 P.2d 1107
, 1108 (Utah 1996) (citation and additional internal quotation marks omitted). ¶9 Pursuant to Utah Code section 76-1-403 (the Single Criminal Episode Statute), ‚*i+f a defendant has been prosecuted for one or more offenses arising out of a single criminal episode,[1] a subsequent prosecution for the same or a different 1. ‚‘*S+ingle criminal episode’ means all conduct which is closely related in time and is incident to an attempt or an accomplishment of a single criminal objective.‛ Utah Code Ann. § 76-1-401 (LexisNexis 2012). In its briefing, the State asserts, as an alternative argument, that Defendant’s ‚offenses did not arise out of a single criminal episode‛ because they were not ‚‘incident to an attempt or an accomplishment of a single criminal objective.’‛ (Quoting Utah Code Ann. § 76-1-401.) But the State acknowledges that ‚the prosecutor in this case ‘did not dispute’ that the two offenses arose out of a single criminal episode‛ and that ‚the trial court *therefore] did not reach the issue.‛ Certainly, the prosecutor’s stance on this issue before the district court is perplexing given that the connection between Defendant’s two offenses is indeed lacking. Nevertheless, during oral argument before this court, the State conceded that we should not decide this case on the alternate ground presented in its briefing. We therefore decline to affirm the decision of the (continued<) 20140329-CA 42017 UT App 63
State v. Jepson offense arising out of the same criminal episode is barred if: (a) the subsequent prosecution is for an offense that was or should have been tried under Subsection 76-1-402(2) in the former prosecution; and (b) the former prosecution: . . . (ii) resulted in conviction.‛2 Utah Code Ann. § 76-1-403(1) (LexisNexis Supp. 2013). Subsection 76-1-402(2), in turn, provides that ‚a defendant shall not be subject to separate trials for multiple offenses when: (a) The offenses are within the jurisdiction of a single court; and (b) The offenses are known to the prosecuting attorney at the time the defendant is arraigned on the first information or indictment.‛ Id. § 76-1-402(2) (2012). ¶10 The Utah Supreme Court has observed that ‚*t+ogether, these provisions impose a one-bite-at-the-apple rule for multiple offenses arising out of a single criminal episode.‛ State v. Ririe,2015 UT 37
, ¶ 8,345 P.3d 1261
. The court further observed that ‚the limiting terms of these statutes are significant‛: Our code does not prescribe a universal bar on multiple prosecutions arising out of a single criminal episode. It limits this bar to cases falling within its terms—to multiple cases ‚within the jurisdiction of a single court‛ in circumstances where the offense(s) in question were ‚known to the prosecuting attorney at the time the defendant is arraigned on the first information or indictment.‛Id.