This memorandum opinion was not selected for publication in the New Mexico Appellate 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Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum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-Appellant,
4 v. No. 32,424
5 JUAN CARLOS MARTINEZ,
6 Defendant-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
8 Douglas R. Driggers, District Judge
9 Gary K. King, Attorney General
10 M. Victoria Wilson, Assistant Attorney General
11 Santa Fe, NM
12 for Appellant
13 Bennet J. Bauer, Acting Chief Public Defender
14 Santa Fe, NM
15 for Appellee
16 MEMORANDUM OPINION
17 FRY, Judge.
18 Plaintiff appeals from the district court’s amended order granting Defendant’s
19 motion to exclude. [RP 353] The State’s notice of appeal [RP 356] was timely filed
20 pursuant to NMSA 1978, Section 39-3-3(B)(2) (1972) (providing that the State may
1 appeal “within ten days from a decision or order of a district court suppressing or
2 excluding evidence or requiring the return of seized property, if the district attorney
3 certifies to the district court that the appeal is not taken for purpose of delay and that
4 the evidence is a substantial proof of a fact material in the proceeding”). Although
5 timely filed within ten days of the order, it is not properly certified. [Id.] The State
6 then filed an amended notice of appeal that indicates that the State is appealing
7 pursuant to Section 39-3-3(B)(2), and that the appeal is not taken for the purpose of
8 delay and that the evidence excluded is substantial proof of a material fact. [RP 363]
9 Although the amended notice of appeal is properly certified, it is not timely filed
10 within ten days of the order.
11 The calendar notice proposed to dismiss the State’s appeal pursuant to this
12 Court’s recent opinion in State v. Vasquez, 2012-NMCA-107, ¶¶ 1-2, 288 P.3d 520,
13 cert. granted, 2012-NMCERT-010, ___ P.3d ___ (holding that the filing a timely
14 appeal and the inclusion of the certification that “the appeal is not taken for purposes
15 of delay and that the evidence [that has been suppressed] is a substantial proof of a
16 fact material in the proceeding” in the state’s notice of appeal are mandatory
17 preconditions to the exercise of this Court’s jurisdiction to hear the state’s appeal and
18 this Court will not exercise its discretion to hear the state’s appeal when the
19 certification is lacking, absent a showing of exceptional circumstances beyond
2
1 inadvertence). In Vasquez, we also held that “the relation back doctrine” does not
2 apply to allow the amended notice of appeal to relate back to the first notice of appeal
3 for purposes of timeliness. 2012-NMCA-107, ¶¶ 17-18.
4 In its memorandum in opposition to the calendar notice, the State essentially
5 does not deny that Vasquez is dispositive, but insists that Vasquez is wrongly decided
6 and asks this Court to reconsider it. [MIO] The State also summarizes the arguments
7 and authorities that it provided to the New Mexico Supreme Court in its petition for
8 writ of certiorari in Vasquez, which the Supreme Court granted. We decline to
9 reconsider Vasquez or overrule it, and we hold that Vasquez is currently the
10 controlling law for purposes of deciding this case. See, e.g., Gulbransen v.
11 Progressive Halcyon Ins. Co., 2010-NMCA-082, ¶ 13, 148 N.M. 585, 241 P.3d 183
12 (stating that a formal Court of Appeals opinion is controlling authority, even when the
13 Supreme Court has granted certiorari in the case), cert. denied, 2010-NMCERT-008,
14 148 N.M. 942, 242 P.3d 1288. Other than contending that Vasquez should be
15 overruled, which we decline to do, the State does not indicate any exceptional
16 circumstances that would warrant this Court’s overlooking the State’s failure to
17 comply with the mandatory preconditions to this Court’s exercise of jurisdiction in
18 this case. Vasquez, 2012-NMCA-107, ¶ 2 (stating that the state’s failure to assert an
3
1 excuse beyond inadvertence is legally insufficient to justify its failure to comply with
2 the mandatory preconditions to this Court’s jurisdiction).
3 We dismiss the State’s appeal.
4 IT IS SO ORDERED.
5
6 CYNTHIA A. FRY, Judge
7 WE CONCUR:
8
9 JAMES J. WECHSLER, Judge
10
11 LINDA M. VANZI, Judge
4