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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. 32,274

 5 RAYMOND MIGUEL GONZALES,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
 8 Stephen K. Quinn, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Raymond Miguel Gonzales
13 Santa Fe, NM

14 Pro Se Appellant

15                                 MEMORANDUM OPINION

16 SUTIN, Judge.

17          Defendant is appealing, pro se, from a district court order denying his motion

18 to set aside a 2001 judgment. We proposed to dismiss the appeal for failure to file a
 1 timely notice of appeal in the proper court. Alternatively, we proposed to affirm

 2 because Defendant’s motion was untimely. We affirm.

 3        Initially, please note that all references will be to the record captioned D-905-

 4 CR02000-00225.

 5        As indicated, Defendant is appealing, pro se, from a district court order denying

 6 his motion to set aside a 2001 judgment. [RP 47-50] In that judgment, Defendant was

 7 sentenced to forty years, with all but nine years suspended. [Id.] Defendant filed a

 8 motion to amend the sentence on May 29, 2012, arguing that he thought at the time

 9 he entered the plea that his total sentence was limited to nine years. [RP 151-53] The

10 district court denied the motion on the ground that it was filed beyond the deadline set

11 forth in Rule 5-801(B) NMRA. [RP 160-61] Defendant filed a timely notice of

12 appeal, but he filed it in this Court. [RP 173] The notice of appeal was apparently not

13 filed in the district court until September 24, 2012. [Id.] Our Rules require a party to

14 file a timely notice of appeal with the district court clerk. See Rules 12-201(A)(2) and

15 -202(A) NMRA. As stated, Defendant’s only timely appeal was filed in the wrong

16 court. As such, our calendar notice proposed to dismiss because Defendant has not

17 complied with a mandatory precondition to the exercise of our appellate jurisdiction

18 to consider the merits of the appeal. See Govich v. North Am. Sys., Inc., 112 N.M.

19 226, 230, 814 P.2d 94, 98 (1991) (stating that compliance with notice of appeal time

20 and place requirements are mandatory preconditions to exercise of appellate

21 jurisdiction).


                                              2
 1         As our Supreme Court has observed while discussing the notice of appeal

 2 requirement, “[o]nly the most unusual circumstances beyond the control of the

 3 parties—such as error on the part of the court—will warrant overlooking procedural

 4 defects.” Trujillo v. Serrano, 117 N.M. 273, 278, 871 P.2d 369, 374 (1994). In his

 5 memorandum in opposition, Defendant essentially argues that exceptional

 6 circumstances exist because the district court somehow did not receive or file the

 7 notice of appeal.

 8        Even if we assume, arguendo, that Defendant is correct that exceptional

 9 circumstances exist in this case, our calendar notice alternatively proposed to affirm

10 the district court’s ruling that Defendant’s motion to amend was late under Rule 5-

11 801(B). [RP 160] Defendant’s motion was directed at his original 2001 sentence.

12 [RP 151-53] Whether we construe his motion as a motion to modify his 2001

13 sentence, or his re-sentencing on probation violation in 2008 [RP 143], both of these

14 dates are well outside of the ninety days allowed under Rule 5-801(B). We decline

15 to construe this as a habeas appeal. See State v. Barraza, 2011-NMCA-111, ¶ 12, ___

16 N.M. ___ , 267 P.3d 815 (stating that “[a]lthough our Supreme Court has the

17 flexibility to construe a motion as a petition for habeas corpus even where it was not

18 denominated as such, Case v. Hatch, 2008-NMSC-024, ¶ 12, 144 N.M. 20, 183 P.3d

19 905, this Court has no such jurisdiction or flexibility to do so. See Rule 5-802(H)(2)

20 [NMRA] (requiring a defendant to petition for certiorari to our Supreme Court in

21 order to obtain review of a district court’s denial of a writ of habeas corpus)”). In



                                             3
1 short, if Defendant seeks relief from the 2001 judgment, he needs to proceed pursuant

2 to the provisions of Rule 5-802.

3        For the reasons set forth in this Opinion, we affirm.

4        IT IS SO ORDERED.



5                                         __________________________________
6                                         JONATHAN B. SUTIN, Judge


7 WE CONCUR:


8 _______________________________
9 RODERICK T. KENNEDY, Judge


10 _______________________________
11 LINDA M. VANZI, Judge




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