State v. Munoz

• Court: New Mexico Court of Appeals
• Decided: July 20, 2010
• Docket: 30,329
• Status: Unpublished

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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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. 30,329

10 MANUEL MUNOZ,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 13 Gary L. Clingman, District Judge

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

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender 18 Karl Erich Martell, Assistant Appellate Defender 19 Santa Fe, NM

20 for Appellant

21 MEMORANDUM OPINION

22 SUTIN, Judge. 1 Defendant appeals the revocation of his probation, arguing that there was

2 insufficient evidence to support the revocation. We proposed to affirm in a notice of

3 proposed summary disposition. Defendant timely responded to our proposal with a

4 memorandum in opposition, as well as a motion to amend the docketing statement.

5 We have considered his arguments and not being persuaded, we affirm.

6 In his motion to amend the docketing statement, Defendant seeks to raise as an

7 issue on appeal that the district court’s written sentence did not conform to the oral

8 pronouncement of the district court. We deny the motion to amend as the issue is not

9 viable. State v. Moore, 109 N.M. 119, 129, 782 P.2d 91, 101 (Ct. App. 1989)

10 (defining a viable issue as an argument that is colorable or arguable), superseded by

11 rule as stated in State v. Salgado, 112 N.M. 537, 817 P.2d 730 (Ct. App. 1991). Even

12 assuming that the district court said something different at the sentencing hearing than

13 was written, our case law is clear that until a judgment is in writing, it is not a final,

14 enforceable judgment. See State v. Diaz, 100 N.M. 524, 525, 673 P.2d 501, 502

15 (1983) (holding that a court is free to change an orally pronounced sentence until a

16 written judgment is filed).

17 In our notice, we proposed to hold that the evidence was sufficient to support

18 the revocation of Defendant’s probation. Defendant acknowledges the evidence that

19 we set forth in the calendar notice, but points out that he had reasonable explanations

2 1 for all of that evidence. [MIO 4-5] As we pointed out in our calendar notice,

2 however, this simply presented conflicting evidence, which was for the district court

3 to resolve. In re Ernesto M. Jr., 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d 318.

4 This Court does not reweigh the evidence or make credibility determinations. We

5 view the evidence that was presented to determine whether a reasonable fact finder

6 could determine that Defendant had violated the terms of his probation. See State v.

7 Martinez, 108 N.M. 604, 606, 775 P.2d 1321, 1323 (Ct. App. 1989) (stating the

8 standard of review for a probation violation).

9 For the reasons stated herein and in the notice of proposed disposition, we

10 affirm.

11 IT IS SO ORDERED.

12 __________________________________ 13 JONATHAN B. SUTIN, Judge

14 WE CONCUR:

15 ______________________________________ 16 CYNTHIA A. FRY, Chief Judge

17 ______________________________________ 18 TIMOTHY L. GARCIA, Judge