State v. Sandoval

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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. 31,802
5 VICENTE T. SANDOVAL,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
8 William H. Brogan, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Vicente T. Sandoval
13 Pro Se-Appellant
14 MEMORANDUM OPINION
15 GARCIA, Judge.
16 Vicente T. Sandoval, appearing pro se (Defendant) appeals from the district
1 court’s order denying his motion to withdraw his 2004 no contest plea. [RP 143]
2 This Court’s calendar notice proposed to affirm the district court’s order,
3 because Defendant’s motion was untimely filed, pursuant to Rule 5-801(B) NMRA
4 (providing that “[a] motion to reduce a sentence may be filed within ninety (90) days
5 after the sentence is imposed”); see also State of New Mexico v. Esau Barraza, 2011-
6 NMCA-111, ¶ 12, __ N.M. __, __ P.3d __ (No. 29,807, Sept. 21, 2011) (Although our
7 Supreme Court has the flexibility to construe a motion as a petition for habeas corpus
8 even where it was not denominated as such, Case v. Hatch, 2008-NMSC -024, ¶ 12,
9 144 N.M. 20, 183 P.3d 905, this Court has no such jurisdiction or flexibility to do so.
10 See Rule 5-802(H)(2) (requiring a defendant to petition for certiorari to our Supreme
11 Court in order to obtain review of a district court’s denial of a writ of habeas
12 corpus.”).
13 In the calendar notice, we also noted: (a) that Defendant’s remedy would be
14 to file a new petition for writ of habeas corpus in the district court; (b) that the district
15 court does have jurisdiction to rule on petitions for writ of habeas corpus, pursuant to
16 N.M. Const. art. VI, §13; and (c) that the New Mexico Supreme Court, not this Court,
17 has jurisdiction to review an appeal from the district court’s ruling, pursuant to N.M.
18 Const. art. VI, § 3, and Rule 5-802(H)(2).
19 Defendant has filed a response to the calendar notice, agreeing with the
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1 proposed disposition. [Ct. App. File, Response]
2 For the reasons set forth in the calendar notice and in this opinion, we affirm
3 the district court’s order denying Defendant’s motion to withdraw his plea.
4 IT IS SO ORDERED.
5 ________________________________
6 TIMOTHY L. GARCIA, Judge
7 WE CONCUR:
8 _________________________________
9 JAMES J. WECHSLER, Judge
10 _________________________________
11 LINDA M. VANZI, Judge
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