Court of Appeals of New Mexico
Decision Information
Rule Set 12 - Rules of Appellate Procedure - cited by 9,410 documents
Rule Set 5 - Rules of Criminal Procedure for the District Courts - cited by 2,154 documents
Citations - New Mexico Appellate Reports
State v. Romero - cited by 38 documents
Decision Content
STATE V. ABEYTA
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
LUIS ABEYTA,
Defendant-Appellant.
No. 33,485
COURT OF APPEALS OF NEW MEXICO
December 3, 2014
APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY, J.C.
Robinson, District Judge
COUNSEL
Gary K. King, Attorney General, Santa Fe, NM, for Appellee
Jorge A. Alvarado, Chief Public Defender, Nicole S. Murray, Assistant Appellate Defender, Santa Fe, NM, for Appellant
JUDGES
CYNTHIA A. FRY, Judge. WE CONCUR: JAMES J. WECHSLER, Judge, TIMOTHY L. GARCIA, Judge
MEMORANDUM OPINION
FRY, Judge.
{1} Defendant appeals from a district court judgment and sentence entered after he was found guilty of three counts of aggravated assault (deadly weapon) and one count of unlawful carrying of a deadly weapon. We issued a calendar notice proposing to dismiss. Defendant has responded with a memorandum in opposition. Not persuaded, we dismiss the appeal.
{2} Defendant is appealing from a district court judgment and sentence entered after he was found guilty of three counts of aggravated assault (deadly weapon) and one count of unlawful carrying of a deadly weapon. The judgment and sentence was filed on December 17, 2013. [RP 159] Defendant filed a pro se “motion for appeal” on December 19, 2013. [RP 166] However, he was represented by counsel, who filed both a motion to reduce sentence and a notice of appeal on December 23, 2013. [RP 171, 188] The motion to reduce sentence was timely filed pursuant to Rule 5-801(B) NMRA. There is no order denying the Rule 5-801(B) motion in the record filed with this Court, and case lookup indicates that the motion has not been ruled on. Accordingly, our calendar notice proposed to dismiss for lack of finality pursuant to State v. Romero, 2014-NMCA-063, ¶ 13, 327 P.3d 525 (holding that a pending Rule 5-801 motion renders a judgment non-final for purposes of appeal).
{3} In his memorandum in opposition, Defendant argues that Romero is distinguishable because the notice of appeal in this case was filed before the Rule 5-801 motion was filed. [MIO 3] However, pursuant to Rule 12-201(D)(4) NMRA, for purposes of lack of finality, it does not matter whether the motion was filed before the notice of appeal has been filed or whether it was filed thereafter. Accordingly, we dismiss the appeal.
{4} IT IS SO ORDERED.
CYNTHIA A. FRY, Judge
WE CONCUR:
JAMES J. WECHSLER, Judge
TIMOTHY L. GARCIA, Judge