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 1          IN THE SUPREME COURT OF THE STATE OF NEW MEXICO


 2 Filing Date: March 4, 2019

 3 STATE OF NEW MEXICO,

 4          Plaintiff-Appellant,

 5 v.                                                                     NO. S-1-SC-36788

 6 NICHOLAS ORTIZ,

 7          Defendant-Appellee.

 8 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
 9 Francis J. Mathew, District Judge


10 Hector H. Balderas, Attorney General
11 Maris Veidemanis, Assistant Attorney General
12 Santa Fe, NM

13 for Appellant


14 Jeffrey J. Buckels
15 Albuquerque, NM

16 for Appellee

17                        DISPOSITIONAL ORDER OF REVERSAL
 1 BACON, Justice.

 2   {1}   The State appeals from an order granting Defendant Nicholas Ortiz’s motion

 3 for a new trial and subsequent order denying its motion for reconsideration. On

 4 December 9, 2016, a jury convicted Defendant of three counts of felony murder

 5 pursuant to NMSA 1978, § 30-2-1(A)(2) (1994), and one count each of aggravated

 6 burglary pursuant to NMSA 1978, § 30-16-4(A) (1963) and conspiracy to commit

 7 aggravated burglary pursuant to NMSA 1978, § 30-28-2 (1979) and § 30-16-4(A).

 8 More than six months later, on June 27, 2017, and before judgment and sentence was

 9 entered, Defendant filed a memorandum in aid of sentencing and request for a sua

10 sponte new trial. On July 25, 2017, after the State had responded to his motion,

11 Defendant filed a joint reply and motion for a new trial. In this motion, Defendant

12 sought a new trial based on the failure to instruct on provocation in the felony murder

13 jury instructions. On September 12, 2017, the district court entered an order granting

14 Defendant a new trial based, in part, on the allegedly deficient jury instructions.

15 Neither the district court nor Defendant relied on “newly discovered evidence” as

16 grounds for the new trial. See Rule 5-614(C) NMRA. The State filed a timely motion

17 for reconsideration and clarification on October 3, 2017, which the district court

18 denied on October 23, 2017. This appeal followed. For the reasons that follow, we


                                              2
 1 reverse the district court’s order granting Defendant a new trial.

 2 The District Court Lacked Jurisdiction to Rule on Defendant’s Motion for a New
 3 Trial

 4   {2}   The filing of a motion for a new trial is subject to strict time lines. Rule 5-

 5 614(C) provides: “A motion for new trial based on [any ground other than] newly

 6 discovered evidence . . . shall be made within ten (10) days after verdict or finding of

 7 guilty or within such further time as the court may fix during the ten (10) day period.”

 8 In State v. Lucero, we held that the failure to comply with the time requirements of

 9 Rule 5-614 deprives the district court of jurisdiction to rule on an untimely motion.

10 2001-NMSC-024, ¶¶ 6, 9, 130 N.M. 676, 30 P.3d 365. In so holding, we

11 acknowledged that there is a difference between “absolute jurisdictional requirements”

12 and those that are equivocal, which are often described as “mandatory preconditions

13 to the exercise of jurisdiction.” Id. ¶ 9 (emphasis, internal quotation marks, and

14 citation omitted). We declined to decide which category of jurisdictional requirements

15 Rule 5-614 fell into, because even if the requirement was equivocal, there were no

16 unusual circumstances in the case that might justify an exception to the time

17 requirements. Id. ¶ 10. Because of the jurisdictional defect, we held that the district

18 court lacked authority to rule on the untimely motion for a new trial. Id. We therefore

19 vacated the order granting a new trial and remanded the case to the district court with

                                              3
 1 instructions that the verdict be reinstated and a judgment and sentence be entered. Id.

 2 ¶ 11.

 3   {3}   In this case, the verdicts were entered on December 9, 2016. The motion for a

 4 new trial based on alleged defects in the jury instructions was filed more than seven

 5 months later, on July 25, 2017, and was therefore clearly untimely under Rule 5-614.

 6 Because the motion was not filed within ten days of the verdicts and was not based on

 7 newly discovered evidence and because nothing in the record suggests that the district

 8 court established a different time requirement within the ten-day period, the district

 9 court lacked jurisdiction to grant Defendant’s motion for a new trial. Neither party

10 raised this issue either below or in briefing in this Court. Nonetheless, because

11 jurisdictional defects cannot be waived and may be raised at any time, Lucero, 2001-

12 NMSC-024, ¶ 4, we are addressing this issue sua sponte.

13 CONCLUSION

14   {4}   Because Defendant did not timely file his motion for new trial, the district

15 court’s order granting a new trial is reversed, and this case is remanded to the district

16 court for reinstatement of the verdict and entry of a judgment and sentence.

17   {5}   IT IS SO ORDERED.




                                               4
 1   ___________________________________
 2   JUDITH K. NAKAMURA, Chief Justice



 3   ___________________________________
 4   BARBARA J. VIGIL, Justice



 5   ___________________________________
 6   MICHAEL E. VIGIL, Justice



 7   ___________________________________
 8   C. SHANNON BACON, Justice



 9   ___________________________________
10   DAVID K. THOMSON, Justice




      5
