2015 UT App 96

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

JOSHUA GENE SCHMIDT,

Defendant and Appellant.

Memorandum Decision

No. 20131124-CA

Filed April 23, 2015

Third District Court, Tooele Department

The Honorable Robert W. Adkins

No. 981300443

Douglas A. Gubler, Attorney for Appellant

Sean D. Reyes, Deborah L. Bulkeley, and Jeffrey S. 

Gray, Attorneys for Appellee

JUDGE JOHN A. PEARCE authored this Memorandum Decision,

in which JUDGES J. FREDERIC VOROS JR. and MICHELE M.

CHRISTIANSEN concurred.

PEARCE, Judge:

¶1 Defendant Joshua Gene Schmidt appeals from a district 

court order denying his motion to review and modify his 

sentence. We conclude that the district court lacked jurisdiction 

to entertain the motion.

¶2 In 1998, the district court accepted Defendant’s guilty plea

on a third-degree felony and sentenced him to an indeterminate 

prison term of up to five years. The court then suspended that 

sentence in favor of probation supervised by Adult Probation 

and Parole (AP&P).
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20131124-CA 2 2015 UT App 96

¶3 In 2000, the district court issued an order for Defendant to 

show cause upon AP&P’s allegations that Defendant had 

violated the terms of his probation. AP&P was unable to serve 

the order to show cause.

¶4 In 2005, Defendant was arrested on unrelated charges. 

AP&P filed an updated probation violation report and served 

the resulting order to show cause on Defendant. Defendant 

appeared before the district court and denied some of the 

alleged violations but admitted others. Based upon those 

admissions, the district court revoked Defendant’s probation. 

The court then effectively restarted Defendant’s probation by 

‚requir[ing] that he serve a hundred days in jail to run 

concurrent to any time he’s presently serving on any other 

matters‛ to ‚close this case out.‛ See Utah Code Ann. § 77-18-

1(12)(e)(ii) (LexisNexis Supp. 2005) (‚Upon a finding that the 

defendant violated the conditions of probation, the court may 

order the probation revoked, modified, continued, or that the 

entire probation term commence anew.‛); see also State v. 

Anderson, 2009 UT 13, ¶ 15, 203 P.3d 990; State v. Vazquez, 2014 

UT App 159, ¶ 5, 330 P.3d 760. Defendant did not appeal this 

ruling.

¶5 In 2013, Defendant filed a motion pursuant to rule 22(e) of 

the Utah Rules of Criminal Procedure, seeking to set aside the 

2005 revocation of the probation resulting from his 1998 

conviction and to retroactively terminate that probation at its

original expiration date in December 2000. He contested ‚any 

allegation that [he] did not . . . comply with the original terms of 

[his] probation.‛ Defendant claimed, ‚*I+n approximately 

summer of 2000, I was told by my probation officer that I had 

completed my probation all except payment of some 

costs/fines.‛ Defendant stated that because he had then paid 

those costs and fines, he had believed that his probation had 

been successfully completed. Defendant noted that he had lived 
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20131124-CA 3 2015 UT App 96

at the same address since 1998 and asserted that the court or 

AP&P could have contacted him there at any time.

¶6 The district court conducted a hearing in October 2013 

and then denied Defendant’s motion to set aside his probation 

revocation in an extensive written ruling. Defendant timely 

appealed that ruling, asserting several grounds of error. In 

addition to responding to those assertions, the State argues that

we lack jurisdiction to review the 2013 court ruling insofar as it 

concerns the 2005 probation revocation. Because the 

jurisdictional question resolves this matter, we do not analyze 

the other issues the parties raise.

¶7 Defendant filed his motion to review and modify his sentence under rule 22(e) of the Utah Rules of Criminal Procedure. 

Rule 22(e) allows a court to ‚correct an illegal sentence, or a 

sentence imposed in an illegal manner, at any time.‛ The district 

court reached the merits of Defendant’s claim without 

considering whether it possessed jurisdiction to consider 

Defendant’s challenge. Rule 22(e), however, did not confer 

jurisdiction upon the district court, because the 2005 revocation 

and restarting of Defendant’s 1998 probation was neither a 

sentence nor illegal under the meaning of rule 22(e). 

¶8 We first address whether rule 22(e) allows a party to 

challenge an order revoking probation. This court addressed a 

similar situation in State v. Waterfield, 2011 UT App 27, 248 P.3d 

57. There, a defendant was sentenced to a period of incarceration 

and that sentence was suspended in favor of probation. One of 

the terms of probation required the defendant to participate in a 

specific substance abuse treatment program. Id. ¶ 5. When it 

became apparent that the defendant was not eligible to enter that

program, the district court revoked his probation and imposed 

the original sentence. Id. The district court characterized this as 

‚‘resentencing’‛ in subsequent proceedings. Id. On appeal, we 

clarified that a probation revocation (and the concomitant 
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20131124-CA 4 2015 UT App 96

reinstatement of the original sentence) is not a sentencing. Id. We 

therefore held that it was error to treat the district court’s 

decision to revoke probation as a sentence susceptible to 

challenge under rule 22(e). See id.

¶9 We see no distinction between the revocation in the case 

before us and the revocation in Waterfield. Here, Defendant’s 

probation was revoked in 2005, and he did not appeal or 

otherwise challenge that decision for nearly eight years. Rule 

22(e) does not provide Defendant with a mechanism to challenge 

that unappealed probation revocation by calling it an illegal 

sentence. Because a decision to revoke and restart probation 

does not constitute sentencing, the district court erred by 

entertaining Defendant’s challenge to the revocation of his 

probation under rule 22(e).

¶10 Furthermore, neither Defendant’s 1998 sentence nor the 

2005 probation revocation and reinstatement can be

characterized as an ‚illegal sentence‛ within the meaning of rule 

22(e). The Utah Supreme Court has defined an illegal sentence as 

‚‘one which is ambiguous with respect to the time and manner 

in which it is to be served, is internally contradictory, omits a 

term required to be imposed by statute, is uncertain as to the 

substance of the sentence, or is a sentence which the judgment of 

conviction did not authorize.’‛ State v. Candedo, 2010 UT 32, ¶ 12, 

232 P.3d 1008 (quoting State v. Yazzie, 2009 UT 14, ¶ 13, 203 P.3d 

984).

¶11 Defendant was originally sentenced to an indeterminate 

term of up to five years in prison. That sentence was suspended 

in favor of two years of probation. After Defendant admitted to 

violating the terms of probation, the district court revoked 

probation and restarted it, ordering Defendant to spend 100 days 

in the Tooele County Detention Center. Defendant does not

identify which of the enumerated grounds that may render a 

sentence illegal are present in his case. It appears that the 
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20131124-CA 5 2015 UT App 96

sentence was not ambiguous, was not contradictory, did not lack 

a required term, was not uncertain in substance, and was within 

the statutory range. See id.; Waterfield, 2011 UT App 27, ¶ 3 

(noting that an illegal sentence under rule 22(e) is generally one 

‚where the sentencing court has no jurisdiction‛ or ‚where the 

sentence is beyond the authorized statutory range‛ (citation and 

internal quotation marks omitted)).

¶12 Because neither Defendant’s sentence nor the revocation 

and reinstatement of his probation constitutes an illegal sentence 

within the meaning of rule 22(e) of the Utah Rules of Criminal 

Procedure, we conclude that the district court lacked jurisdiction 

to consider Defendant’s 2013 rule 22(e) motion. We therefore

vacate the district court’s ruling on that motion and remand the 

case to the district court with instructions to dismiss the motion 

for lack of jurisdiction.1

 

1. Defendant also asserts that the State stipulated to set aside and 

successfully terminate his probation. Defendant contends that

the district court erred because stipulations between parties are 

binding upon district courts. The State disputes the existence of a 

stipulation and interprets Defendant’s contention as an 

argument that the district court obtained jurisdiction via a 

stipulation between the parties. To the extent that Defendant’s 

contention concerns jurisdiction, the State is correct that 

‚*j+urisdiction cannot be conferred upon *a+ court by 

stipulation.‛ Dixie Stockgrowers’ Bank v. Washington County, 19 

P.2d 388, 389 (Utah 1933); see also Bailey v. Sound Lab, Inc., 694 

P.2d 1043, 1044 (Utah 1984).