Romero v. State

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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Filing Date: January 8, 2021

No. S-1-SC-37602

ROGER ROMERO,

Petitioner-Appellee,

v.

STATE OF NEW MEXICO,

Respondent-Appellant.

APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
James Waylon Counts, District Judge

Office of the Twelfth Judicial District Attorney
John P. Sugg, District Attorney
James W. Grayson, Assistant District Attorney
Alamogordo, NM

for Appellant

Gary C. Mitchell, P.C.
Gary C. Mitchell
Ruidoso, NM

Zach Cook, LLC
Zachary J. Cook
Ruidoso, NM

for Appellee

DISPOSITIONAL ORDER OF TRANSFER

{1} WHEREAS, this matter having come before the Court upon the State’s appeal
from a district court order insofar as it granted Petitioner’s petition for writ of habeas
corpus, see Rule 12-102(A)(3) NMRA (providing for direct appeals to the Supreme
Court from the granting of writs of habeas corpus under Rule 5-802 NMRA);
{2} WHEREAS, every member of the Court having considered the briefs and being
otherwise fully informed on the issues and applicable law;

{3} WHEREAS, the State on appeal challenges the district court’s exercise of
postconviction jurisdiction under both Rule 5-802 and Rule 5-803 NMRA in seeking to
vacate the district court’s order setting aside Petitioner’s magistrate court conviction for
accumulating waste on his property in violation of Lincoln County, N.M. Ordinance
2016-02 (Aug. 16, 2016);

{4} WHEREAS, this Court determines that, at the time his petition was filed,
Petitioner was no longer “in custody or under restraint” for purposes of habeas corpus
jurisdiction, as required by Rule 5-802(A);

{5} WHEREAS, Rule 5-803(A) governs a petition for postsentence relief when a
Petitioner “is not in custody or under restraint as a result of” a challenged conviction;

{6} WHEREAS, this Court determines that the district court had jurisdiction over this
matter solely by reason of Rule 5-803;

{7} WHEREAS, the Court of Appeals has jurisdiction over appeals taken from a
district court order setting aside a conviction, see Rule 12-102(B); and

{8} WHEREAS, NMSA 1978, Section 34-5-10 (1966) provides for the transfer of
misfiled appeals to the proper appellate court;

{9} NOW, THEREFORE, IT IS ORDERED that the State’s appeal of the district
court’s order setting aside Petitioner’s conviction is transferred to the Court of Appeals
for consideration and review.

{10} IT IS SO ORDERED.

MICHAEL E. VIGIL, Chief Justice

BARBARA J. VIGIL, Justice

C. SHANNON BACON, Justice

DAVID K. THOMSON, Justice

JUDITH K. NAKAMURA, Justice, Retired
Sitting by Designation