State v. Botello

• Court: New Mexico Court of Appeals
• Decided: November 7, 2011
• Docket: 31,406
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 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. 31,406

10 CIPRIANO BOTELLO,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 13 Lisa C. Schultz, District Judge

14 Gary K. King, Attorney General 15 Santa Fe, NM

16 for Appellee

17 Cipriano Botello 18 Hobbs, NM

19 Pro Se Appellant

20 MEMORANDUM OPINION

21 FRY, Judge.

22 Defendant Cipriano Botello appeals the district court’s denial of his motion for

23 reconsideration of sentence. This Court filed a notice of proposed summary 1 disposition on September 21, 2011, proposing to dismiss the appeal because

2 Defendant’s notice of appeal was filed one day late. Defendant filed a memorandum

3 in opposition on October 3, 2011, which we have given due consideration.

4 Unpersuaded, we dismiss Defendant’s appeal.

5 Rule 12-201(A)(2) NMRA requires that a notice of appeal shall be filed “within

6 thirty (30) days after the judgment or order appealed from is filed in the district court

7 clerk’s office.” The New Mexico Supreme Court has held that timely filing a notice

8 of appeal is a mandatory precondition to this Court’s exercise of jurisdiction. Trujillo

9 v. Serrano, 117 N.M. 273, 277-78, 871 P.2d 369, 373-74 (1994).

10 Our review of the record shows that the order denying Defendant’s motion to

11 reconsider sentence was filed on May 10, 2011. [RP 361] Defendant, acting pro se,

12 filed his notice of appeal thirty-one days later on Friday, June 10, 2011. [RP 363]

13 Accordingly, the mandatory precondition has not been met, nor has Defendant pointed

14 out any unusual circumstances, such as late filing caused by an error of the court, that

15 might provide a sufficient reason to overlook the lateness. Id.

16 For the reasons stated above, we dismiss this appeal.

17 IT IS SO ORDERED.

2 1 2 CYNTHIA A. FRY, Judge

3 WE CONCUR:

4 5 JAMES J. WECHSLER, Judge

6 7 TIMOTHY L. GARCIA, Judge