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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. 32,274
5 RAYMOND MIGUEL GONZALES,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
8 Stephen K. Quinn, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Raymond Miguel Gonzales
13 Santa Fe, NM
14 Pro Se Appellant
15 MEMORANDUM OPINION
16 SUTIN, Judge.
17 Defendant is appealing, pro se, from a district court order denying his motion
18 to set aside a 2001 judgment. We proposed to dismiss the appeal for failure to file a
1 timely notice of appeal in the proper court. Alternatively, we proposed to affirm
2 because Defendant’s motion was untimely. We affirm.
3 Initially, please note that all references will be to the record captioned D-905-
4 CR02000-00225.
5 As indicated, Defendant is appealing, pro se, from a district court order denying
6 his motion to set aside a 2001 judgment. [RP 47-50] In that judgment, Defendant was
7 sentenced to forty years, with all but nine years suspended. [Id.] Defendant filed a
8 motion to amend the sentence on May 29, 2012, arguing that he thought at the time
9 he entered the plea that his total sentence was limited to nine years. [RP 151-53] The
10 district court denied the motion on the ground that it was filed beyond the deadline set
11 forth in Rule 5-801(B) NMRA. [RP 160-61] Defendant filed a timely notice of
12 appeal, but he filed it in this Court. [RP 173] The notice of appeal was apparently not
13 filed in the district court until September 24, 2012. [Id.] Our Rules require a party to
14 file a timely notice of appeal with the district court clerk. See Rules 12-201(A)(2) and
15 -202(A) NMRA. As stated, Defendant’s only timely appeal was filed in the wrong
16 court. As such, our calendar notice proposed to dismiss because Defendant has not
17 complied with a mandatory precondition to the exercise of our appellate jurisdiction
18 to consider the merits of the appeal. See Govich v. North Am. Sys., Inc., 112 N.M.
19 226, 230, 814 P.2d 94, 98 (1991) (stating that compliance with notice of appeal time
20 and place requirements are mandatory preconditions to exercise of appellate
21 jurisdiction).
2
1 As our Supreme Court has observed while discussing the notice of appeal
2 requirement, “[o]nly the most unusual circumstances beyond the control of the
3 parties—such as error on the part of the court—will warrant overlooking procedural
4 defects.” Trujillo v. Serrano, 117 N.M. 273, 278, 871 P.2d 369, 374 (1994). In his
5 memorandum in opposition, Defendant essentially argues that exceptional
6 circumstances exist because the district court somehow did not receive or file the
7 notice of appeal.
8 Even if we assume, arguendo, that Defendant is correct that exceptional
9 circumstances exist in this case, our calendar notice alternatively proposed to affirm
10 the district court’s ruling that Defendant’s motion to amend was late under Rule 5-
11 801(B). [RP 160] Defendant’s motion was directed at his original 2001 sentence.
12 [RP 151-53] Whether we construe his motion as a motion to modify his 2001
13 sentence, or his re-sentencing on probation violation in 2008 [RP 143], both of these
14 dates are well outside of the ninety days allowed under Rule 5-801(B). We decline
15 to construe this as a habeas appeal. See State v. Barraza, 2011-NMCA-111, ¶ 12, ___
16 N.M. ___ , 267 P.3d 815 (stating that “[a]lthough our Supreme Court has the
17 flexibility to construe a motion as a petition for habeas corpus even where it was not
18 denominated as such, Case v. Hatch, 2008-NMSC-024, ¶ 12, 144 N.M. 20, 183 P.3d
19 905, this Court has no such jurisdiction or flexibility to do so. See Rule 5-802(H)(2)
20 [NMRA] (requiring a defendant to petition for certiorari to our Supreme Court in
21 order to obtain review of a district court’s denial of a writ of habeas corpus)”). In
3
1 short, if Defendant seeks relief from the 2001 judgment, he needs to proceed pursuant
2 to the provisions of Rule 5-802.
3 For the reasons set forth in this Opinion, we affirm.
4 IT IS SO ORDERED.
5 __________________________________
6 JONATHAN B. SUTIN, Judge
7 WE CONCUR:
8 _______________________________
9 RODERICK T. KENNEDY, Judge
10 _______________________________
11 LINDA M. VANZI, Judge
4