State v. Birkley ( 2010 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. No. 30,297
10 WILLIAM BIRKLEY,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Albert “Pat” S. Murdoch, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 William Birkley
18 Albuquerque, NM
19 Pro Se Appellant
20 MEMORANDUM OPINION
21 SUTIN, Judge.
22 Defendant appeals from the district court’s dismissal of his appeal from
23 metropolitan court as untimely. This Court issued a calendar notice proposing to
1 dismiss for lack of a final order. Defendant has filed a memorandum in opposition to
2 this Court’s notice, which we have duly considered. Unpersuaded, we dismiss this
3 appeal.
4 On February 20, 2007, Appellant was cited for two moving violations arising
5 from an automobile accident. [DS 3] On April 2, 2007, Defendant was found guilty
6 of one count of overtaking on the left in violation of NMSA 1978, Section 66-7-312
7 (1978). [RP 29] On appeal, Defendant asserts that he was not informed of his right
8 to appeal the metropolitan court’s determination and that when he later discovered,
9 based on his own research, that he had the right to appeal the metropolitan court’s
10 judgment, he filed a notice of appeal in November 2009. [DS 4; RP 32] The district
11 court dismissed Defendant’s appeal as untimely. [RP 37] Defendant filed a motion
12 for reconsideration. [RP 38] The district court has not ruled on that motion.
13 As this Court pointed out in its notice of proposed disposition, a criminal
14 defendant may file an appeal from criminal proceedings in district court to this Court
15 if the appeal is: (1) “within thirty days from the entry of any final judgment[,]”
16 (2) “within ten days after entry of an order denying relief on a petition to review
17 conditions of release . . . [,]” or (3) “an interlocutory order or decision in which the
18 district court, in its discretion, makes a finding in the order or decision that the order
19 or decision involves a controlling question of law as to which there is substantial
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1 ground for difference of opinion and that an immediate appeal from such order or
2 decision may materially advance the ultimate termination of the litigation.” NMSA
3 1978, § 39-3-3(A) (1972). When a post-judgment motion is filed that could alter,
4 amend, or moot the judgment, the judgment is no longer final for purposes of appeal,
5 and the time for filing a notice of appeal begins to run from the filing of the order
6 disposing of the post-judgment motion. See Grygorwicz v. Trujillo, 2009-NMSC-009,
7 ¶ 8, 145 N.M. 650, 203 P.3d 865; Dickens v. Laurel Healthcare, LLC, 2009-NMCA-
8 122, ¶ 6, 147 N.M. 303, 222 P.3d 675. We therefore proposed to conclude that
9 Defendant’s act of requesting reconsideration of the district court’s order dismissing
10 his appeal, rendered the underlying dismissal of Defendant’s appeal a non-final order,
11 and we proposed to dismiss Defendant’s appeal as premature.
12 In his memorandum in opposition, Defendant challenges our Supreme Court’s
13 recent decisions on finality and their impact on the deemed-denied provision of
14 NMSA 1978, Section 39-1-1 (1917). Specifically, Defendant contends that the
15 Supreme Court’s decision to supersede the deemed-denied provision of Section 39-1-1
16 violates separation of powers [MIO 3-4], permits our courts to arbitrarily frustrate
17 appellate review [MIO 4-5], violates due process by denying defendants the right of
18 access to the courts [MIO 6-7], and denies equal protection [MIO 7-9]. To the extent
19 Defendant challenges our Supreme Court’s rulings in Albuquerque Redi-Mix, Inc. v.
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1 Scottsdale Ins. Co., 2007-NMSC-051, ¶ 15, 142 N.M. 527, 168 P.3d 99, and
2 Grygorwicz, 2009-NMSC-009, ¶ 8, this Court is bound by Supreme Court precedent.
3 See State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, ¶¶ 20-22, 135 N.M.
4 375, 89 P.3d 47. We therefore apply Albuquerque Redi-Mix and Gyrgorwicz which,
5 as we explained in this Court’s notice of proposed disposition, results in dismissal of
6 Defendant’s appeal for lack of finality. Further, to the extent Defendant challenges
7 the effectiveness of his counsel’s representation in metropolitan court, asserts
8 prosecutorial misconduct, and contests the factual foundation for his conviction on
9 appeal [MIO 9-15], we do not address these issues because they are not properly
10 before us at this time.
11 Finally, Defendant asks that this Court not dismiss his appeal, but return
12 jurisdiction to the district court for the limited purpose of permitting it to rule on his
13 post-trial motion. [MIO 8] We deny Defendant’s request, as we conclude that
14 dismissal is appropriate in this case. Defendant’s post-trial motion asked the district
15 court to reconsider whether dismissal of his appeal from metropolitan court was
16 untimely. Defendant is appealing from the district court’s order of dismissal. Should
17 the district court reconsider its ruling and determine that dismissal was inappropriate,
18 there will no longer be a basis for Defendant’s present appeal. Because the district
19 court’s resolution of the issue presented in Defendant’s post-trial motion may obviate
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1 the necessity of the current appeal, we conclude that the appropriate remedy is
2 dismissal. We therefore dismiss Defendant’s appeal and remand the matter to the
3 district court with instructions that the district court resolve Defendant’s pending
4 motion.
5 For the reasons stated in this opinion and in our notice of proposed disposition,
6 we dismiss Defendant’s appeal for lack of a final order.
7 IT IS SO ORDERED.
8 __________________________________
9 JONATHAN B. SUTIN, Judge
10 WE CONCUR:
11 _________________________________
12 JAMES J. WECHSLER, Judge
13 _________________________________
14 CELIA FOY CASTILLO, Judge
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