Village of Corrales v. D Giron

• Court: New Mexico Court of Appeals
• Decided: January 15, 2009
• Docket: 28,991
• Status: Unpublished

Opinion

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

2 VILLAGE OF CORRALES,

3 Plaintiff-Appellee,

4 v. NO. 28,991

5 DAVID T. GIRON,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 8 John F. Davis, District Judge

9 Michael E. Martinez 10 Rio Rancho, NM

11 for Appellee

12 David T. Giron 13 Corrales, NM

14 Pro Se Appellant

15 MEMORANDUM OPINION

16 CASTILLO, Judge.

17 Defendant, pro se, challenges his judgment and sentence convicting him of a

18 seatbelt violation. [RP 41-42] We issued a calendar notice proposing to dismiss the

19 appeal for lack of jurisdiction. Defendant has responded with a memorandum in 1 opposition. Because we remain unpersuaded that this Court has jurisdiction over this

2 appeal, we dismiss the appeal.

3 To properly invoke this Court’s jurisdiction, a party must comply with the

4 appellate rules governing the time and place in which to file the notice of appeal. See

5 Govich v. N. Am. Sys., Inc., 112 N.M. 226, 230, 814 P.2d 94, 98 (1991); see also

6 Trujillo v. Serrano, 117 N.M. 273, 277-78, 871 P.2d 369, 373-74 (1994) (establishing

7 that the timely filing of a notice of appeal is a mandatory precondition to our exercise

8 of jurisdiction to hear an appeal). In this case, the district court’s judgment and

9 sentence convicting Defendant of the seatbelt violation was entered on August 22,

10 2008. [RP 41] Under the applicable rules of appellate procedure, Defendant had

11 thirty days thereafter to file a notice of appeal with the clerk of the district court. See

12 Rule 12-202(A) NMRA (“An appeal permitted by law as of right from the district

13 court shall be taken by filing a notice of appeal with the district court clerk within the

14 time allowed by Rule 12-201 NMRA”); Rule 12-201(A)(2). Defendant did not file

15 a notice of appeal in accordance with these rules because he did not file a notice of

16 appeal in district court.

17 In his memorandum in opposition, Defendant states that he filed a notice of

18 appeal in our jurisdiction on September 17, 2008. [MIO 1] However, notice of appeal

19 must be filed in the district court—not in the Court of Appeals. See Lowe v. Bloom,

2 1 110 N.M. 555, 556, 798 P.2d 156, 157 (1990) (holding that filing a notice of appeal

2 with the Court of Appeals does not substantially comply with Rule 12-202(A)’s

3 requirement that the notice of appeal be filed with the district court). Additionally, the

4 notice of appeal from Defendant’s magistrate court conviction that Defendant

5 references in the documents he filed with this Court on September 17 does not comply

6 with the requirements of Rules 12-201 and -202 and cannot confer jurisdiction in this

7 Court. See Lowe, 110 N.M. at 556, 798 P.2d at 157.

8 Additionally, we note that, although a document entitled “Notice of Appeal”

9 and captioned in the thirteenth judicial district appears in this Court’s file, it contains

10 no date-stamp from that court. Nor is there any other indication that the document

11 was filed with the district court. This is insufficient. See id.

12 We may excuse the failure to follow the rules of appellate procedure regarding

13 proper filing of a notice of appeal in criminal cases by employing a conclusive

14 presumption of ineffective assistance of counsel. See State v. Upchurch,

15 2006-NMCA-076, ¶ 4, 139 N.M. 739, 137 P.3d 679 (citing State v. Duran, 105 N.M.

16 231, 232, 731 P.2d 374, 375 (Ct. App. 1986)). We do not, however, extend the

17 presumption to a defendant who represents himself or herself and has waived the

18 assistance of counsel, effective or otherwise. See State ex rel. Children, Youth &

19 Families Dep’t v. Amanda M., 2006-NMCA-133, ¶ 19, 140 N.M. 578, 144 P.3d 137

3 1 (“In order for the presumption of ineffective assistance of counsel to apply, the party

2 must have a right to effective assistance of counsel.”); see also Upchurch,

3 2006-NMCA-076, ¶ 4 (stating that we routinely excuse untimely appeals of

4 represented criminal defendants presuming the ineffective assistance of counsel); cf.

5 State v. Peppers, 110 N.M. 393, 399, 796 P.2d 614, 620 (Ct. App. 1990) (refusing to

6 extend the conclusive presumption adopted in Duran to appeals from guilty or no

7 contest pleas). Because Defendant appeared pro se and did not have a right to

8 counsel, we see no reason to extend the Duran presumption to Defendant’s appeal.

9 See State v. Lewis, 104 N.M. 218, 221, 719 P.2d 445, 448 (Ct. App. 1986) (“A

10 defendant who elects to assert his [or her] right of self-representation in a criminal

11 appeal is required to comply with all applicable rules of appellate procedure[.]”); see

12 also Bruce v. Lester, 1999-NMCA-051, ¶ 4, 127 N.M. 301, 980 P.2d 84 (holding that

13 pro se litigants must comply with the rules and orders of the court and will not be

14 treated differently than litigants with counsel).

15 Nor can we construe Defendant’s docketing statement filed in this Court on

16 October 14, 2008, as a notice of appeal. A docketing statement filed in district court

17 that complies with the requirements of Rule 12-202(B) may be sufficient to vest

18 jurisdiction in this Court. See Marquez v. Gomez, 111 N.M. 14, 15, 801 P.2d 84, 85

19 (1990). However, Defendant did not file the docketing statement in district court, nor

4 1 was it filed within the thirty-day time limit for filing a notice of appeal. See Lowe,

2 110 N.M. at 556, 798 P.2d at 157.

3 Without a timely notice of appeal and without any indication that this case

4 presents unusual or exceptional circumstances that would justify deviation from our

5 mandatory and rigidly enforceable procedural rules, we cannot exercise our

6 jurisdiction to entertain this appeal. See Upchurch, 2006-NMCA-076, ¶ 5.

7 For the foregoing reasons, we dismiss this appeal.

8 IT IS SO ORDERED.

9 ________________________________ 10 CELIA FOY CASTILLO, Judge

11 WE CONCUR:

12 ________________________________ 13 JAMES J. WECHSLER, Judge

14 ________________________________ 15 CYNTHIA A. FRY, Judge