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Neese v. State

Court of Appeals of Utah

August 31, 2017

Michael Neese, Appellant,
v.
State of Utah, Appellee.

         Fourth District Court, Provo Department The Honorable Christine S. Johnson No. 150400036

          Michael Neese, Appellant Pro Se

          Sean D. Reyes and Mark C. Field, Attorneys for Appellee

          Before Judges Michele M. Christiansen, Kate A. Toomey, and Ryan M. Harris.

          PER CURIAM.

         ¶1 Michael Neese appeals the district court's order granting the State's motion for summary judgment and dismissing his petition for post-conviction relief.

         ¶2 Appellate courts review a district court's order granting summary judgment for correctness, granting no deference to the district court. See Menzies v. State, 2014 UT 40, ¶ 30, 344 P.3d 581. "We affirm a grant of summary judgment when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Id. (citation and internal quotation marks omitted).

         ¶3 Utah Code section 78B-9-107(1) states that "[a] petitioner is entitled to relief only if the petition is filed within one year after the cause of action has accrued." Utah Code Ann. § 78B-9-107(1) (LexisNexis 2012). The statute goes on to set forth the dates upon which the cause of action accrues:

(a) the last day for filing an appeal from the entry of the final judgment of conviction, if no appeal is taken;
(b) the entry of the decision of the appellate court which has jurisdiction over the case, if an appeal is taken;
(c) the last day for filing a petition for writ of certiorari in the Utah Supreme Court or the United States Supreme Court, if no petition for writ of certiorari is filed;
(d) the entry of the denial of the petition for writ of certiorari or the entry of the decision on the petition for certiorari review, if a petition for writ of certiorari is filed;
(e) the date on which petitioner knew or should have known, in the exercise of reasonable diligence, of evidentiary facts on ...

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