State v. Palmer

ORDER

This matter is before the Court upon appellant’s motion to stay issuance of the remittitur filed 20 November 1990.

Appellant seeks to stay the remittitur pending disposition of appellant’s petition for rehearing. Rule 36(a), Utah R.App.P., provides that a remittitur shall not issue until five days after entry of an order disposing of a timely rehearing petition. By Order filed 23 November 1990, the Court granted appellant an extension of time to 19 December 1990 to file the petition for rehearing. The Order automatically stayed issuance of the remittitur by virtue of Rule 36(a). Appellant’s request to stay the remittitur pending disposition of the rehearing petition is therefore unnecessary.

Appellant also seeks to stay the remit-titur pending resolution of a petition for writ of certiorari, in the event that appellant files said petition in the Utah Supreme Court. Rule 36(b), Utah R.App.P., provides that a stay of the remittitur may be granted pending application for review. Appellant seeks a stay of the remittitur “in the event Petitioner’s Petition for Rehearing is denied, until Appellant’s Petition for Writ of Certiorari in the Utah Supreme Court is resolved.” Appellant’s motion to stay the remittitur pending disposition of a potential petition for certiorari is premature, but may be renewed after entry of the order disposing of the petition for rehearing. Upon receipt of such a motion within the five-day period contemplated in Rule 36(a), the clerk of the court, consistent with her usual practice, will defer remittitur until such time as the motion is acted upon by the court.

Now therefore, IT IS HEREBY ORDERED that the motion is denied.