Supreme Court of New Mexico

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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Filing Date:  January 8, 2021

No. S-1-SC-37602

ROGER ROMERO,

Petitioner-Appellee,

v.

STATE OF NEW MEXICO,

Respondent-Appellant.

APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
James Waylon Counts, District Judge

Office of the Twelfth Judicial District Attorney

John P. Sugg, District Attorney

James W. Grayson, Assistant District Attorney

Alamogordo, NM

for Appellant

Gary C. Mitchell, P.C.

Gary C. Mitchell

Ruidoso, NM

Zach Cook, LLC

Zachary J. Cook

Ruidoso, NM

for Appellee

DISPOSITIONAL ORDER OF TRANSFER

{1}         WHEREAS, this matter having come before the Court upon the State’s appeal from a district court order insofar as it granted Petitioner’s petition for writ of habeas corpus, see Rule 12-102(A)(3) NMRA (providing for direct appeals to the Supreme Court from the granting of writs of habeas corpus under Rule 5-802 NMRA);

{2}         WHEREAS, every member of the Court having considered the briefs and being otherwise fully informed on the issues and applicable law;

{3}         WHEREAS, the State on appeal challenges the district court’s exercise of postconviction jurisdiction under both Rule 5-802 and Rule 5-803 NMRA in seeking to vacate the district court’s order setting aside Petitioner’s magistrate court conviction for accumulating waste on his property in violation of Lincoln County, N.M. Ordinance 2016-02 (Aug. 16, 2016);

{4}         WHEREAS, this Court determines that, at the time his petition was filed, Petitioner was no longer “in custody or under restraint” for purposes of habeas corpus jurisdiction, as required by Rule 5-802(A);

{5}         WHEREAS, Rule 5-803(A) governs a petition for postsentence relief when a Petitioner “is not in custody or under restraint as a result of” a challenged conviction;

{6}         WHEREAS, this Court determines that the district court had jurisdiction over this matter solely by reason of Rule 5-803;

{7}         WHEREAS, the Court of Appeals has jurisdiction over appeals taken from a district court order setting aside a conviction, see Rule 12-102(B); and

{8}         WHEREAS, NMSA 1978, Section 34-5-10 (1966) provides for the transfer of misfiled appeals to the proper appellate court;

{9}         NOW, THEREFORE, IT IS ORDERED that the State’s appeal of the district court’s order setting aside Petitioner’s conviction is transferred to the Court of Appeals for consideration and review.

{10}      IT IS SO ORDERED.

MICHAEL E. VIGIL, Chief Justice

BARBARA J. VIGIL, Justice

C. SHANNON BACON, Justice

DAVID K. THOMSON, Justice

JUDITH K. NAKAMURA, Justice, Retired
Sitting by Designation