State v. Mazzei

Opinion

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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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. 30,746

10 PATRICK MAZZEI,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Robert M. Schwartz, District Judge

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

16 for Appellee

17 Fuentes & Associates, P.C. 18 Robert R. Fuentes 19 Rio Rancho, NM

20 for Appellant

21 MEMORANDUM OPINION

22 VIGIL, Judge.

23 Defendant appeals from a conditional plea and disposition agreement in which

24 he pleaded guilty to one count of aggravated driving under the influence (Fourth or 1 Subsequent Offense). [RP 115] This Court issued a calendar notice proposing to

2 dismiss Defendant’s appeal for lack of a final order. Specifically, we proposed to

3 conclude that because sentencing was left pending while the Defendant’s case was

4 referred to drug court, and because no final judgment and sentence was entered,

5 Defendant’s notice of appeal was premature. See State v. Garcia, 99 N.M. 466, 471,

6 659 P.2d 918, 923 (Ct. App. 1983) (holding that in a criminal case the final judgment

7 is the judgment and sentence or an order dismissing all charges against the defendant).

8 Defendant has filed a response to this Court’s notice of proposed summary

9 disposition. In his response, Defendant concurs with this Court’s proposed disposition

10 of dismissal. We therefore dismiss Defendant’s appeal as premature. Defendant may

11 re-file his appeal once a final judgment and sentence has been entered.

12 IT IS SO ORDERED.

13 _______________________________ 14 MICHAEL E. VIGIL, Judge 15 WE CONCUR:

16 _________________________________ 17 MICHAEL D. BUSTAMANTE, Judge

18 _________________________________ 19 RODERICK T. KENNEDY, Judge