State v. Granados

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. NO. 34,736

5 FRANCISCO J. GRANADOS,

6 Defendant-Appellant,

7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 8 Jerry H. Ritter, Jr., District Judge

9 Hector H. Balderas, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender 13 Santa Fe, NM 14 Steven J. Forsberg, Assistant Appellate Defender 15 Albuquerque, NM

16 for Appellant

17 MEMORANDUM OPINION

18 ZAMORA, Judge.

19 {1} Defendant appeals his convictions for trafficking controlled substances

20 (possession with intent to distribute) (2nd offense) and tampering with evidence, as 1 well as the enhancement of his sentence for being a habitual offender. [RP 316] Our

2 notice proposed to dismiss for lack of a final order, and Defendant has filed a

3 “memorandum in conditional support of summary dismissal.” Because we continue

4 to believe that the judgment and sentence is non-final, we dismiss.

5 {2} As we provided in our notice, subsequent to Defendant’s appeal, this Court

6 reversed and remanded for further proceedings in a separate case involving Defendant,

7 State v. Granados, No. 33,972, mem.op. (N.M. Ct. App. May 7, 2015) (non-

8 precedential) (Case #1). As acknowledged in the district court’s “sua sponte order

9 denying in part Defendant’s pro se motion for reconsideration of sentence” (sua

10 sponte order) [RP 333], the proceedings on remand in Case #1 could impact the

11 sentence in the present case with respect to any enhancement for being a habitual

12 offender. To this end, the sua sponte order contemplates further proceedings, stating

13 “[u]pon completion of briefing, and oral argument if requested, I will decide the issue

14 regarding the habitual offender enhancement.” [RP 333] Given this, the judgment and

15 sentence is non-final. See, e.g., Kelly Inn No. 102, Inc. v. Kapnison, 1992-NMSC-005,

16 ¶ 14, 113 N.M. 231, 824 P.2d 1033 (providing that an order or judgment is not

17 considered final unless all issues of law and fact have been determined and the case

18 disposed of by the trial court to the fullest extent possible); State v. Romero, 2014-

19 NMCA-063, ¶¶ 8,13, 327 P.3d 525 (concluding that the pendency of a post-judgment

2 1 motion for reconsideration of a sentence suspends the finality of the preceding

2 judgment and sentence until express disposition).

3 {3} Defendant acknowledges the foregoing, but provides that his non-opposition

4 to summary dismissal is conditioned upon our dismissal being “without prejudice.”

5 However, we believe that this would be a dubious exercise of our jurisdiction and so

6 decline to condition our dismissal as advocated by Defendant. See Romero, 2014-

7 NMCA-063, ¶ 16 (recognizing that an appeal is appropriately dismissed for lack of

8 jurisdiction when a non final-order has been entered). Instead, we simply dismiss and

9 remand to the district court for further proceedings. We note, however, that our

10 dismissal does not preclude Defendant from filing another appeal once finality

11 concerns have been alleviated. Id. ¶¶ 8, 13 (concluding that the pendency of a post-

12 judgment motion for reconsideration of sentence suspends the finality of the preceding

13 judgment and sentence until express disposition).

14 {4} For reasons stated herein and in our notice, we accordingly dismiss for lack of

15 a final order, and remand to the district court for further proceedings.

16 {5} IT IS SO ORDERED.

17 18 M. MONICA ZAMORA, Judge

19 WE CONCUR:

3 1 MICHAEL E. VIGIL, Chief Judge 2 3 4 JONATHAN B. SUTIN, Judge