State v. Mazzei ( 2011 )

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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 30,746
10 PATRICK MAZZEI,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Robert M. Schwartz, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Fuentes & Associates, P.C.
18 Robert R. Fuentes
19 Rio Rancho, NM
20 for Appellant
21 MEMORANDUM OPINION
22 VIGIL, Judge.
23 Defendant appeals from a conditional plea and disposition agreement in which
24 he pleaded guilty to one count of aggravated driving under the influence (Fourth or
1 Subsequent Offense). [RP 115] This Court issued a calendar notice proposing to
2 dismiss Defendant’s appeal for lack of a final order. Specifically, we proposed to
3 conclude that because sentencing was left pending while the Defendant’s case was
4 referred to drug court, and because no final judgment and sentence was entered,
5 Defendant’s notice of appeal was premature. See State v. Garcia, 99 N.M. 466, 471,
6 659 P.2d 918, 923 (Ct. App. 1983) (holding that in a criminal case the final judgment
7 is the judgment and sentence or an order dismissing all charges against the defendant).
8 Defendant has filed a response to this Court’s notice of proposed summary
9 disposition. In his response, Defendant concurs with this Court’s proposed disposition
10 of dismissal. We therefore dismiss Defendant’s appeal as premature. Defendant may
11 re-file his appeal once a final judgment and sentence has been entered.
12 IT IS SO ORDERED.
13 _______________________________
14 MICHAEL E. VIGIL, Judge
15 WE CONCUR:
16 _________________________________
17 MICHAEL D. BUSTAMANTE, Judge
18 _________________________________
19 RODERICK T. KENNEDY, Judge
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