State v. Sandoval

• Court: New Mexico Court of Appeals
• Decided: February 13, 2012
• Docket: 31,802
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 31,802

5 VICENTE T. SANDOVAL,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 8 William H. Brogan, District Judge

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

11 for Appellee

12 Vicente T. Sandoval

13 Pro Se-Appellant

14 MEMORANDUM OPINION

15 GARCIA, Judge.

16 Vicente T. Sandoval, appearing pro se (Defendant) appeals from the district 1 court’s order denying his motion to withdraw his 2004 no contest plea. [RP 143]

2 This Court’s calendar notice proposed to affirm the district court’s order,

3 because Defendant’s motion was untimely filed, pursuant to Rule 5-801(B) NMRA

4 (providing that “[a] motion to reduce a sentence may be filed within ninety (90) days

5 after the sentence is imposed”); see also State of New Mexico v. Esau Barraza, 2011-

6 NMCA-111, ¶ 12, __ N.M. __, __ P.3d __ (No. 29,807, Sept. 21, 2011) (Although our

7 Supreme Court has the flexibility to construe a motion as a petition for habeas corpus

8 even where it was not denominated as such, Case v. Hatch, 2008-NMSC -024, ¶ 12,

9 144 N.M. 20, 183 P.3d 905, this Court has no such jurisdiction or flexibility to do so.

10 See Rule 5-802(H)(2) (requiring a defendant to petition for certiorari to our Supreme

11 Court in order to obtain review of a district court’s denial of a writ of habeas

12 corpus.”).

13 In the calendar notice, we also noted: (a) that Defendant’s remedy would be

14 to file a new petition for writ of habeas corpus in the district court; (b) that the district

15 court does have jurisdiction to rule on petitions for writ of habeas corpus, pursuant to

16 N.M. Const. art. VI, §13; and (c) that the New Mexico Supreme Court, not this Court,

17 has jurisdiction to review an appeal from the district court’s ruling, pursuant to N.M.

18 Const. art. VI, § 3, and Rule 5-802(H)(2).

19 Defendant has filed a response to the calendar notice, agreeing with the

2 1 proposed disposition. [Ct. App. File, Response]

2 For the reasons set forth in the calendar notice and in this opinion, we affirm

3 the district court’s order denying Defendant’s motion to withdraw his plea.

4 IT IS SO ORDERED.

5 ________________________________ 6 TIMOTHY L. GARCIA, Judge

7 WE CONCUR:

8 _________________________________ 9 JAMES J. WECHSLER, Judge

10 _________________________________ 11 LINDA M. VANZI, Judge