State v. Gibson ( 2009 )

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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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-Appellee,
9 v. NO. 29,507
10 TERRY D. GIBSON,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF DONA AÑA COUNTY
13 Stephen Bridgforth, District Judge
14 Gary K. King, Attorney General
15 Margaret McLean, Assistant Attorney General
16 Santa Fe, NM
17 for Appellant
18 Jeffrey C. Lahann
19 Las Cruces, NM
20 for Appellee
21 MEMORANDUM OPINION
22 VIGIL, Judge.
23 The State of New Mexico appeals the district court’s dismissal of the grand
24 jury indictment charging Terry D. Gibson with several criminal offenses. This
1 Court filed a calendar notice proposing dismissal because the notice of appeal was
2 untimely filed. The State filed a memorandum in opposition, which we have duly
3 considered.
4 The State’s memorandum in opposition asks this Court to excuse the late
5 filing because it was caused by an inadvertent failure to allow for the fact that the
6 month of March has thirty-one days, not thirty. [MIO 3] Rule 12-201(A)(2)
7 NMRA requires that a notice of appeal be filed within thirty days after the
8 judgment or order appealed from is filed in the district court clerk's office. We
9 have held that the timely filing of a notice of appeal is a mandatory precondition to
10 the exercise of our appellate jurisdiction. See State v. Upchurch, 2006-NMCA-
11 076, 139 N.M. 739, 137 P.3d 679 (dismissing state’s appeal when notice of appeal
12 filed one day late). The docketing statement does not mention any circumstances of
13 the type that might excuse the late filing. See, e.g., Trujillo v. Serrano, 117 N.M.
14 273, 871 P.2d 369 (1994) (holding that late filing of notice of appeal may be
15 excused where court error caused the delay).
16 Because the notice of appeal was not timely filed, we dismiss this appeal.
17 IT IS SO ORDERED.
18
19 MICHAEL E. VIGIL, Judge
20 WE CONCUR:
2
1
2 CYNTHIA A. FRY, Chief Judge
3
4 CELIA FOY CASTILLO, Judge
3