State v. Granados ( 2015 )

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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. 34,736
5 FRANCISCO J. GRANADOS,
6 Defendant-Appellant,
7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
8 Jerry H. Ritter, Jr., District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jorge A. Alvarado, Chief Public Defender
13 Santa Fe, NM
14 Steven J. Forsberg, Assistant Appellate Defender
15 Albuquerque, NM
16 for Appellant
17 MEMORANDUM OPINION
18 ZAMORA, Judge.
19 {1} Defendant appeals his convictions for trafficking controlled substances
20 (possession with intent to distribute) (2nd offense) and tampering with evidence, as
1 well as the enhancement of his sentence for being a habitual offender. [RP 316] Our
2 notice proposed to dismiss for lack of a final order, and Defendant has filed a
3 “memorandum in conditional support of summary dismissal.” Because we continue
4 to believe that the judgment and sentence is non-final, we dismiss.
5 {2} As we provided in our notice, subsequent to Defendant’s appeal, this Court
6 reversed and remanded for further proceedings in a separate case involving Defendant,
7 State v. Granados, No. 33,972, mem.op. (N.M. Ct. App. May 7, 2015) (non-
8 precedential) (Case #1). As acknowledged in the district court’s “sua sponte order
9 denying in part Defendant’s pro se motion for reconsideration of sentence” (sua
10 sponte order) [RP 333], the proceedings on remand in Case #1 could impact the
11 sentence in the present case with respect to any enhancement for being a habitual
12 offender. To this end, the sua sponte order contemplates further proceedings, stating
13 “[u]pon completion of briefing, and oral argument if requested, I will decide the issue
14 regarding the habitual offender enhancement.” [RP 333] Given this, the judgment and
15 sentence is non-final. See, e.g., Kelly Inn No. 102, Inc. v. Kapnison, 1992-NMSC-005,
16 ¶ 14, 113 N.M. 231, 824 P.2d 1033 (providing that an order or judgment is not
17 considered final unless all issues of law and fact have been determined and the case
18 disposed of by the trial court to the fullest extent possible); State v. Romero, 2014-
19 NMCA-063, ¶¶ 8,13, 327 P.3d 525 (concluding that the pendency of a post-judgment
2
1 motion for reconsideration of a sentence suspends the finality of the preceding
2 judgment and sentence until express disposition).
3 {3} Defendant acknowledges the foregoing, but provides that his non-opposition
4 to summary dismissal is conditioned upon our dismissal being “without prejudice.”
5 However, we believe that this would be a dubious exercise of our jurisdiction and so
6 decline to condition our dismissal as advocated by Defendant. See Romero, 2014-
7 NMCA-063, ¶ 16 (recognizing that an appeal is appropriately dismissed for lack of
8 jurisdiction when a non final-order has been entered). Instead, we simply dismiss and
9 remand to the district court for further proceedings. We note, however, that our
10 dismissal does not preclude Defendant from filing another appeal once finality
11 concerns have been alleviated. Id. ¶¶ 8, 13 (concluding that the pendency of a post-
12 judgment motion for reconsideration of sentence suspends the finality of the preceding
13 judgment and sentence until express disposition).
14 {4} For reasons stated herein and in our notice, we accordingly dismiss for lack of
15 a final order, and remand to the district court for further proceedings.
16 {5} IT IS SO ORDERED.
17
18 M. MONICA ZAMORA, Judge
19 WE CONCUR:
20
3
1 MICHAEL E. VIGIL, Chief Judge
2
3
4 JONATHAN B. SUTIN, Judge
4