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State v. Jepson

Court of Appeals of Utah

April 6, 2017

State of Utah, Appellee,
v.
Misty Dawn Jepson, Appellant.

         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.

          OPINION

          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 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 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 ...

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