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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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-Appellant,
9 v. NO. 29,783
10 THOMAS TANNEHILL,
11 Defendant-Appellee.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Robert Schwartz, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 M. Victoria Wilson, Assistant Attorney General
17 Albuquerque, NM
18 for Appellant
19 Hugh W. Dangler, Chief Public Defender
20 Santa Fe, NM
21 for Appellee
22 MEMORANDUM OPINION
23 WECHSLER, Judge.
1 The State seeks to appeal from an order granting Defendant’s motion to
2 dismiss. We issued a notice of proposed summary disposition, proposing to dismiss
3 the appeal for want of a final order. The State has filed a memorandum in opposition,
4 which we have duly considered. Because we remain unpersuaded that the appeal is
5 properly before us at this juncture, we dismiss.
6 “With narrow and well-defined exceptions, appellate court jurisdiction is
7 limited to timely appeals from final judgments or orders that are properly filed of
8 record with the lower court.” State v. Lohberger, 2008-NMSC-033, ¶ 19, 144 N.M.
9 297, 187 P.3d 162. As of the time that the docketing statement was filed with this
10 Court, no written, final order had been entered by the district court. Instead, the judge
11 previously assigned to the case had merely issued a letter reflecting his intent to grant
12 Defendant’s motion to dismiss. [RP 86-87] As we observed in the notice of proposed
13 summary disposition, such a letter cannot properly be regarded as a final, appealable
14 order. See Lohberger, 2008-NMSC-033, ¶ 20 (observing that a formal, final, written
15 order containing decretal language is required, and recognizing that a court-filed letter
16 announcing a decision does not constitute a final order).
17 In its memorandum in opposition the State indicates that the district court has
18 recently filed a formal, written order dismissing the proceedings “pursuant to Judge
2
1 Schwartz’ ruling.” [MIO 1, attachment] This partially addresses the finality problem.
2 Nevertheless, the appeal remains premature.
3 As we observed in the notice of proposed summary disposition, the State filed
4 a timely motion for reconsideration below in which it argued that dismissal is
5 unwarranted, particularly in light of the New Mexico Supreme Court’s decision in
6 State v. Garza, 2009-NMSC-038, 146 N.M. 499, 212 P.3d 387. [RP 88-95, 123-57]
7 Neither the recently-filed order of dismissal nor any other document in the record
8 before us reflects that the motion has been considered on its merits or expressly ruled
9 upon, as required. See Rule 5-121 NMRA, Committee Commentary for 2009
10 amendments (explaining that the 2009 amendment is “intended to make clear that the
11 automatic denial provision in [NMSA 1978,] Section 39-1-1 [(1917)] has no
12 application in cases subject to the Rules of Criminal Procedure for the District
13 Courts,” and observing that the courts are required to promptly enter judgments or
14 orders expressly disposing of such motions).
15 We considered construing the recently-filed order of dismissal as an implicit
16 denial of the State’s motion for reconsideration. However, we have concluded that
17 such an approach would be improper. As indicated above, the courts are now required
18 to expressly rule on motions for reconsideration. The district court’s order does not
3
1 satisfy this requirement. To the contrary, it merely indicates that the case is dismissed
2 “pursuant to Judge Schwartz’ ruling.” [MIO attachment] Insofar as Judge Schwartz’
3 letter does not purport to address the State’s subsequently filed motion for
4 reconsideration, [RP 86-87] and insofar as the motion was not heard before Judge
5 Schwartz recused, [DS 7] the order of dismissal “pursuant to Judge Schwartz’ ruling”
6 cannot be regarded as a ruling on the merits of the motion for reconsideration.
7 The Supreme Court has recently explained that, “when a party makes a motion
8 [pursuant to Section 39-1-1] challenging the district court’s determination of the rights
9 of the parties . . . [the determination] is not final, and the time for filing an appeal does
10 not begin to run, until the district court disposes of the motion.” Grygorwicz v.
11 Trujillo, 2009-NMSC-009, ¶ 8, 145 N.M. 650, 203 P.3d 865. Insofar as the district
12 court has yet to rule on the State’s motion for reconsideration, we conclude that the
13 underlying order is not final, and the time for filing an appeal has not begun to run.
14 See id.
15 Accordingly, for the reasons stated, this appeal is dismissed.
16 IT IS SO ORDERED.
17 _______________________________
18 JAMES J. WECHSLER, Judge
4
1 WE CONCUR:
2 _____________________________
3 JONATHAN B. SUTIN, Judge
4 _____________________________
5 CELIA FOY CASTILLO, Judge
5