State v. Traeger ( 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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 31,214
10 JOSEPH TRAEGER,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
13 George P. Eichwald, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Joseph Traeger
18 Plantation, FL
19 Pro Se Appellant
20 MEMORANDUM OPINION
21 VANZI, Judge.
1 Defendant appeals, pro se, from a district court order denying his motion for
2 early release from probation. We issued a calendar notice proposing to dismiss.
3 Defendant has responded with a memorandum in opposition. We dismiss the appeal.
4 As indicated, Defendant is appealing from a district court order denying his
5 motion for early release from probation and clarifying the status of his probationary
6 term. The order was filed on February 16, 2011. [RP 339] The notice of appeal was
7 filed late, on March 24, 2011. [RP 341] As our Supreme Court has observed, “[o]nly
8 the most unusual circumstances beyond the control of the parties—such as error on
9 the part of the court—will warrant overlooking procedural defects.” Trujillo v.
10 Serrano, 117 N.M. 273, 278, 871 P.2d 369, 374 (1994). Our calendar notice observed
11 that Defendant’s circumstances were not exceptional because he had plenty of time
12 to file a timely notice of appeal. In his memorandum in opposition, Defendant points
13 out that he received a copy of the order just days before the notice of appeal was due.
14 However, he could either have quickly filed his appeal, or requested an extension of
15 time pursuant Rule 12-201(E)(1) or (2) NMRA. As such, the circumstances were not
16 beyond his control, and we dismiss the appeal. See Govich v. North Am. Sys., Inc.,
17 112 N.M. 226, 230, 814 P.2d 94, 98 (1991) (compliance with notice of appeal time
18 and place requirements are mandatory preconditions to exercise of appellate
19 jurisdiction).
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1 IT IS SO ORDERED.
2 __________________________________
3 LINDA M. VANZI, Judge
4 WE CONCUR:
5 _________________________________
6 RODERICK T. KENNEDY, Judge
7 _________________________________
8 MICHAEL E. VIGIL, Judge
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