State v. Judd ( 2009 )

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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 29,460
10 KEITH RUSSELL JUDD,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Neil C. Candelaria, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Hugh W. Dangler, Chief Public Defender
18 Nancy M. Hewitt, Assistant Appellate Defender
19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
22 VIGIL, Judge.
1 Defendant appeals the district court denial of his motion to vacate a
2 dismissal of charges. Defendant urged the district court to make the dismissal with
3 prejudice
2
1 rather than without prejudice. We proposed to dismiss the appeal on the grounds
2 that Defendant was not aggrieved by the order. Defendant has timely responded.
3 We have considered his arguments and not being persuaded, we dismiss the appeal.
4 Defendant argues that this Court is incorrect in proposing to conclude that he
5 is not an aggrieved party. He argues that a dismissal with prejudice is very
6 different from a dismissal without prejudice. We agree. However, as we pointed
7 out in our notice, charging decisions are the sole province of the prosecutor. See
8 State v. Gonzales, 2002-NMCA-071, ¶ 18, 132 N.M. 420, 49 P.3d 681 (discussing
9 the duty of the district attorney regarding charging decisions and the broad
10 discretion given to the district attorney in those matters).
11 Further, as recognized by Defendant, any further prosecution on these
12 charges is time-barred. See NMSA 1978, § 30-1-8(C) (2009) (stating time limit for
13 commencing prosecution of misdemeanor). In all practicality because the charges
14 were not reinstated within the statute of limitations, Defendant is not aggrieved by
15 the district court order denying his motion.
16 For the reasons stated herein and in the notice of proposed disposition, we
17 dismiss the appeal.
3
1 IT IS SO ORDERED.
2
3 MICHAEL E. VIGIL, Judge
4 WE CONCUR:
5
6 CYNTHIA A. FRY, Chief Judge
7
8 JONATHAN B. SUTIN, Judge
4