State v. K Judd

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 28,550
5 KEITH RUSSELL JUDD,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Neil C. Candelaria, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Keith Russell Judd
13 Texarkana, TX
14 Pro se Appellant
15 MEMORANDUM OPINION
16 KENNEDY, Judge.
17 Defendant appeals from an amended judgment reducing his sentence. The
18 judgment was entered on June 11, 1998. The docketing statement was filed over ten
19 years late on January 26, 2009. In this Court’s notice of proposed summary
20 disposition, we proposed to dismiss the appeal based on Defendant’s untimely filing
1 of the docketing statement. See Rule 12-312(A) NMRA (“If an appellant fails to file
2 a docketing statement in the Court of Appeals . . . such failure may be deemed
3 sufficient grounds for dismissal of the appeal by the appellate court.”). In the
4 alternative, we proposed to hold that because Defendant had entered into a plea
5 agreement, he had waived the right to appeal any issues except those relating to the
6 district court’s jurisdiction, and that Defendant’s one jurisdictional argument lacked
7 merit. Defendant has not filed a memorandum in opposition, and the time to do so has
8 passed. Accordingly, we dismiss Defendant’s appeal based on the untimely filing of
9 the docketing statement. See Frick v. Veazey, 116 N.M. 246, 247, 861 P.2d 287, 288
10 (Ct. App. 1993) (“Failure to file a memorandum in opposition constitutes acceptance
11 of the disposition proposed in the calendar notice., ¶ 24, 124 N.M. 754, 955 P.2d 68312 (“Our courts have repeatedly held that, in summary calendar cases, the burden is on
13 the party opposing the proposed disposition to clearly point out errors in fact or law.”).
14 In addition, this Court has considered Defendant’s motion for leave to file an amended
15 docketing statement and his motion for production of transcripts and the record
16 proper. As we have dismissed Defendant’s appeal, we deny those motions as moot.
17 Therefore, for the reasons stated in this opinion, we dismiss Defendant’s appeal and
18 deny his motions.
19 IT IS SO ORDERED.
1 _______________________________
2 RODERICK T. KENNEDY, Judge
3 WE CONCUR:
4 ___________________________
5 ROBERT E. ROBLES, Judge
6 ___________________________
7 TIMOTHY L. GARCIA, Judge