2006 UT 32
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah,
No. 20040894
Plaintiff and Respondent,
v.
F I L E D
Robert Ellis Cox,
Defendant and Petitioner.
May 26, 2006
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Third District, Salt Lake
The Honorable Robin W. Reese
No. 011901230
Attorneys: Mark L. Shurtleff, Att'y Gen., Laura B. Dupaix,
Asst. Att'y Gen., Salt Lake City, for plaintiff
Linda M. Jones, Salt Lake City, for defendant
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On Certiorari to the Utah Court of Appeals
PARRISH, Justice:
INTRODUCTION
¶1
We granted Richard Ellis Cox's petition for certiorari
to determine whether an appellate court has the authority to
remand a criminal case for nunc pro tunc resentencing after it
has determined that it lacks jurisdiction over the matter. At
the time we granted certiorari, a defendant who could demonstrate
that he had been denied the constitutional right to appeal his
conviction was entitled to be resentenced nunc pro tunc, thereby
effectively reinstating his time to appeal. Our recent opinion
in Manning v. State1 replaced the nunc pro tunc procedure with
one utilizing a straightforward reinstatement of the right to
appeal. Consequently, the issue now before us is whether we may
direct the trial court to reinstate Cox's time for appealing his
conviction or whether Cox must seek reinstatement of his right to

1 2005 UT 61, 122 P.3d 628.

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appeal in the trial court. We hold that a trial court, rather
than an appellate court, is the appropriate forum for a defendant
seeking reinstatement of his right to appeal under Manning. We
therefore affirm the court of appeals' order dismissing Cox's
appeal.
FACTUAL AND PROCEDURAL BACKGROUND
¶2
In October 2003, a jury convicted Cox of several first
degree felonies involving the sexual abuse of a child. On
December 5, 2003, Cox's counsel moved for a new trial. Three
days later, Cox was sentenced to a number of consecutive and
concurrent prison terms of indeterminate lengths. During
sentencing, Cox's counsel expressed the erroneous belief that the
filing of the motion for a new trial had stayed "the necessity of
filing an appeal . . . pending the resolution of that [motion]."
¶3
Cox's motion for a new trial was heard on March 2,
2004. During the hearing, Cox's counsel made several references
to Cox's intent to file a notice of appeal. The trial court
denied the motion for a new trial at the conclusion of the
hearing, and Cox filed a notice of appeal on April 8, 2004. The
State then moved for summary dismissal, arguing that the appeal
was untimely.
¶4
In response, Cox filed in the court of appeals a
"Motion to Temporarily Remand for Resentencing." Cox argued that
because his attorney was ineffective in perfecting his appeal,
the court of appeals should remand the case to the district court
for nunc pro tunc resentencing. The court of appeals declined to
do so, holding that it lacked jurisdiction because the notice of
appeal was untimely. It explained that Cox's motion for a new
trial, which was made before sentencing, was "premature";
therefore, it had not tolled the time for filing the notice of
appeal.2
¶5
Cox petitioned this court for certiorari, which we
granted. We have jurisdiction to hear this case pursuant to Utah
Code section 78-2-2(5) (2002).

2 State v. Cox, 2004 UT App 277U, para. 1.
No. 20040894
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ANALYSIS
¶6
We review "the court of appeals' decision for
correctness and grant no deference to its conclusions of law."3
Jurisdictional issues, which the parties can raise at any time,
are also reviewed for correctness.4
¶7
As originally framed, the issue on which we granted
certiorari required us to examine the scope of an appellate
court's authority to order nunc pro tunc resentencing in those
cases where the appellate court lacked jurisdiction but the
defendant had been denied his constitutional right to appeal.
Because Manning replaced nunc pro tunc resentencing with a simple
procedure allowing the reinstatement of a defendant's time to
appeal, the issue presented for our consideration is whether an
appellate court may remand for a Manning reinstatement procedure
in cases where it has determined that it lacks jurisdiction over
a direct appeal. We conclude that allowing such a procedure
would be unwise. We accordingly affirm the court of appeals'
dismissal of this case but vacate its reasoning.
I. MANNING HAS REPLACED THE NUNC PRO TUNC RESENTENCING SCHEME
¶8
Manning v. State5 provides the starting point for our
discussion. In Manning, we held that nunc pro tunc resentencing
is no longer the appropriate remedy for defendants who have been
denied their constitutional right to appeal.6 In its place, we
instituted a new remedy for defendants who have been denied their
right to pursue an appeal through no fault of their own.7
¶9
Under the Manning procedure, a defendant who can
establish that he has been unconstitutionally denied the right to
appeal may make a motion in "the trial or sentencing court [to]
reinstate the time frame for filing a direct appeal."8 A
defendant seeking reinstatement bears the burden of showing an

3 State v. Shipp, 2005 UT 35, ¶ 8, 116 P.3d 317.

4 State v. Finlayson, 2004 UT 10, ¶ 5, 84 P.3d 1193; James
v. Galetka, 965 P.2d 567, 570 (Utah Ct. App. 1998).

5 2005 UT 61, 122 P.3d 628.

6 Id. ¶ 11.

7 Id. ¶ 25.

8 Id. ¶ 31 (emphasis added).
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No. 20040894

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unconstitutional denial of his right to appeal by a preponderance
of the evidence.9 In Manning, we identified a nonexclusive list
of circumstances, drawn from our prior case law, under which we
had found an unconstitutional denial of a defendant's right to
appeal.10 Those circumstances were that
(1) the defendant asked his or her attorney
to file an appeal but the attorney, after
agreeing to file, failed to do so; (2) the
defendant diligently but futilely attempted
to appeal within the statutory time frame
without fault on the defendant's part; or
(3) the court or the defendant's attorney
failed to properly advise [the] defendant of
the right to appeal.11
¶10
Because Cox's case arguably falls within these
enumerated circumstances, he could have simply pursued a Manning
remedy in the trial court. Instead, Cox asked the court of
appeals to remand his case and direct the trial court to take the
action necessary to reinstate his right to appeal. We therefore
address whether an appellate court can direct a trial court to
give such relief.
II. MANNING RELIEF MUST BE SOUGHT IN THE TRIAL COURT
¶11
We hold that motions seeking reinstatement of a
defendant's time to appeal must be filed in the trial court. And
in the interests of uniformity and consistency, we decline to
recognize appellate court authority to direct that a trial court
reinstate the time for appeal.
¶12
Our opinion in Manning clearly contemplates this
result. Manning states that "upon a defendant's motion, the
trial or sentencing court may reinstate the time frame for filing
a direct appeal."12 In other words, a defendant must file a
motion in the trial court before the court can reinstate his time
for appeal.

9 Id. ¶ 32.

10 Id. ¶¶ 31-32.

11 Id. ¶ 31 (citations omitted).

12 Id. (emphasis added).
No. 20040894
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¶13
This result is consistent with the practical realities
of a motion seeking to reinstate the time for appeal. A
defendant seeking reinstatement of his right to appeal has the
burden of proof and must establish by a preponderance of the
evidence that he has been unconstitutionally denied his right to
appeal.13 The appropriate setting for presenting such evidence
is in the trial court. Trial courts are uniquely equipped to
take evidence and resolve any factual disputes. Conversely,
appellate courts lack a mechanism for the presentation of
evidence and the resolution of factual disputes.
¶14
In urging this court to order a reinstatement of his
right to appeal on remand, Cox points out that our Manning
opinion considered a reinstatement of Manning's right to appeal
without requiring that Manning file a new motion in the trial
court and without remanding for an evidentiary hearing.14 But
Manning is distinguishable because Manning had already filed a
petition for an extraordinary writ seeking nunc pro tunc
resentencing in the district court.15 And it was the denial of
this petition that was the subject of Manning's appeal.16 In
contrast here, Cox first sought relief from the alleged denial of
his right to appeal in the court of appeals after his appeal had
been dismissed. And unlike Manning, Cox has yet to ask the
district court for relief or to present any evidence to the
district court supporting his claim that he has been
unconstitutionally denied his right to appeal.
CONCLUSION
¶15
Consistent with our opinion in Manning and the
interests of uniformity and consistency, we hold that a defendant
seeking reinstatement of his right to appeal under Manning must
file a motion in the trial court. We therefore affirm the court
of appeals' dismissal of Cox's appeal. In so holding, we
emphasize that we are not foreclosing Cox's ability to seek
reinstatement of his time for appeal under Manning. Rather, we
are merely clarifying that if Cox wishes to pursue a Manning
remedy, he must seek such relief in the trial court.
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13 Id.

14 See id. ¶ 34 n.12.

15 See id. ¶ 6.

16 Id. ¶ 8.
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No. 20040894

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¶16
Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish's
opinion.
No. 20040894
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