State v. L Boylan

• Court: New Mexico Court of Appeals
• Decided: April 21, 2009
• Docket: 28,917
• Status: Unpublished

Opinion

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

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. No. 28,917

5 LARRY J. BOYLAN,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 8 Stephen D. Pfeffer, District Judge

9 Gary K. King, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender 13 Stephanie Erin Brunson, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant

16 MEMORANDUM OPINION

17 SUTIN, Judge.

18 Defendant appeals his convictions for intimidation of a witness and resisting or

19 obstructing an officer. Our notice of proposed summary disposition proposed to

20 dismiss for lack of finality. Defendant filed a timely memorandum in support 1 pursuant to a granted motion for extension of time. We remain persuaded that

2 dismissal is merited and accordingly remand for further proceedings.

3 As set forth in our notice, while the judgment sets forth the amount of

4 restitution to be paid, the district court did not provide the manner in which Defendant

5 is to pay restitution. Because the judgment necessarily contemplates the preparation

6 of a restitution plan to be filed with the district court and because it is possible that the

7 parties may dispute the feasibility of the plan, the judgment is not final. See State v.

8 Candy L., 2003-NMCA-109, ¶¶ 5-6, 134 N.M. 213, 75 P.3d 429 (holding that an order

9 requiring that the child pay restitution according to a later-developed restitution plan

10 did not dispose of the case to the fullest extent possible because the child could object

11 to the juvenile probation office’s plan regarding how the child was to satisfy the

12 obligation).

13 While agreeing that piecemeal appeals are to be avoided [MIS 4] and that

14 dismissal for lack of finality is merited [MIS 8], Defendant urges this Court to “order

15 the lower court to reexamine and explicitly state the basis upon which it requires” him

16 to make restitution to Victim. [MIS 4] In making his request, Defendant emphasizes

17 that it is unclear why he must reimburse Victim for the three months during which

2 1 time Victim occupied the property. [MIS 7] Defendant may request such findings in

2 the first instance below while on remand.

3 Conclusion. We dismiss this appeal for lack of finality and remand for further

4 proceedings consistent with this opinion.

5 IT IS SO ORDERED.

6 __________________________________ 7 JONATHAN B. SUTIN, Judge

8 WE CONCUR:

9 _________________________________ 10 CYNTHIA A. FRY, Chief Judge

11 _________________________________ 12 JAMES J. WECHSLER, Judge