State v. Jackson

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. NO. 34,852

5 SHIRLEY JACKSON,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 8 Angie K. Schneider, District Judge

9 Hector H. Balderas, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender 13 Sergio J. Viscoli, Appellate Defender 14 Albuquerque, NM

15 for Appellant

16 MEMORANDUM OPINION

17 ZAMORA, Judge.

18 {1} Defendant Shirley Jackson appeals following her entry of a guilty plea

19 admitting a probation violation and seeks reversal of the denial of her motion to  1 dismiss the petition for probation revocation. [DS 1; RP 186] Defendant asserts she

2 moved to dismiss the petition for probation revocation on the ground that the

3 adjudication hearing was not commenced within the time limit prescribed by Rule 5-

4 805 NMRA. [DS 2] In this Court’s notice of proposed disposition, we proposed to

5 dismiss for lack of a final order or because Defendant waived her right to appeal. [CN

6 2] Defendant filed a memorandum in opposition, which we have given due

7 consideration. Remaining unpersuaded, we dismiss.

8 {2} Defendant asks this Court to construe a plea document and order committing

9 her to jail as a final order. [MIO 2–3] In support of her argument, Defendant points

10 to the plea document containing hand-written language stating, “[Department of

11 Corrections] for nine years from [September] 9, 2014, with credit for pre-sentence

12 confinement and time served.” [MIO 3; RP 186] We note, however, that this language

13 refers to Defendant’s understanding of the range of possible sentences for the

14 violation and not a sentence actually imposed. It appears from a review of Odyssey

15 that a subsequent commitment order was entered on November 9, 2015, ordering

16 Defendant to complete a sixty-day diagnostic evaluation at the Department of

17 Corrections, but no judgment and sentence has been ordered. We therefore conclude

18 Defendant’s probation revocation is non-final and dismiss for lack of a final order. See

2  1 State v. Garcia, 1983-NMCA-017, 25, 99 N.M. 466, 659 P.2d 918 (holding that, in

2 a criminal case, the final judgment is the judgment and sentence or an order

3 dismissing all the charges against the defendant); see also Thornton v. Gamble, 1984-

4 NMCA-093, 15, 101 N.M. 764, 688 P.2d 1268 (holding that when a final judgment

5 has not been entered, an appellate court lacks jurisdiction and must dismiss).

6 {3} As we noted in our proposed disposition, even if we concluded Defendant’s

7 case was final, which we do not, Defendant waived her right to appeal by entering an

8 unconditional plea. [CN 3] Defendant concedes her plea was unconditional but asks

9 this Court to use its discretion to consider the merits of her argument, because, she

10 argues, the district court lacked jurisdiction to revoke her probation. [MIO 3-4] This

11 Court may consider jurisdictional issues for the first time on appeal following entry

12 of a voluntary guilty plea. See State v. Chavarria, 2009-NMSC-020, 14, 146 N.M.

13 251, 208 P.3d 896 (recognizing that a voluntary guilty plea ordinarily constitutes a

14 waiver of the defendant’s right to appeal his conviction on other than jurisdictional

15 grounds, but that an illegal sentence (such as one not authorized by the applicable

16 statute) may be challenged for the first time on appeal). However, as Defendant

17 acknowledges, dismissal of a probation revocation petition based on violation of time

18 limits is discretionary. See Rule 5-805(L) (“[T]he court may dismiss the motion to

3  1 revoke probation for violating any of the time limits in this rule.” (emphasis added)).

2 [MIO 4] Thus, the district court did not lack jurisdiction to accept Defendant’s guilty

3 plea. We therefore conclude Defendant does not raise a jurisdictional issue that can

4 properly be considered for the first time on appeal after an unconditional plea and

5 decline to consider the merits of her motion to dismiss the revocation petition.

6 {4} Accordingly, for the reasons stated above and this Court’s notice of proposed

7 disposition, we dismiss.

8 {5} IT IS SO ORDERED.

9 10 M. MONICA ZAMORA, Judge

11 WE CONCUR:

12 13 JONATHAN B. SUTIN, Judge

14 15 RODERICK T. KENNEDY, Judge

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