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
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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
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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 4 2017 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. (quoting Utah Code § 76-1-402(2)).
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