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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. 33,311

 5 BECKY MARTINEZ,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 Sandra A. Price, District Judge


 9 Gary K. King, Attorney General
10 Albuquerque, NM

11 for Appellee

12   The Law Offices of the Public Defender
13   Jorge A. Alvarado, Chief Public Defender
14   Allison H. Jaramillo, Assistant Appellate Defender
15   Santa Fe, NM

16 for Appellant


17                                 MEMORANDUM OPINION
 1 KENNEDY, Chief Judge.

 2   {1}   Becky Martinez (Defendant) appeals from the district court’s denial of her

 3 motion to suppress, following her conviction in magistrate court for DWI (third

 4 offense), pursuant to a conditional plea reserving the suppression issue. [RP 121] Our

 5 second notice proposed to dismiss for lack of a final order. Defendant filed a response

 6 in opposition to summary dismissal. We are not persuaded by Defendant’s arguments

 7 and therefore dismiss.

 8   {2}   As we explained in our notice, under its limited review as provided by

 9 Defendant’s magistrate court conditional plea, [Ct.App.File, red clips] the district

10 court considered Defendant’s suppression arguments in a de novo hearing [RP 90, 92,

11 116] and, ultimately, entered an order denying Defendant’s motion to suppress. [RP

12 121] While the district court denied Defendant’s motion to suppress, [RP 129, 134]

13 it did not also enter an order dismissing Defendant’s appeal. See State v. Celusniak,

14 2004-NMCA-070, ¶¶ 14, 15, 135 N.M. 728, 93 P.3d 10 (providing that, if the district

15 court, following a conditional plea in magistrate court, enters an order denying the

16 defendant’s motion to suppress, then it has ruled on all the matters before it and

17 dismissal of the appeal by the district court is the mechanism for disposing of the

18 appeal) (emphasis added). Thus, absent an order by the district court dismissing

19 Defendant’s appeal, we lack a final order. Cf. id. ¶ 10 (recognizing that dismissal of

20 the appeal is appropriate when the court has ruled on all matters before it); see also

                                              2
 1 Khalsa v. Levinson, 1998-NMCA-110, ¶ 13, 125 N.M. 680, 964 P.2d 844 (providing

 2 that an order is final if it includes “decretal language that carries the decision into

 3 effect by ordering that something happen”).

 4   {3}   In response to our notice, Defendant emphasizes that there are no issues

 5 remaining to be adjudicated on the merits and, irrespective of the lack of a final order

 6 of dismissal as required by Celusniak, requests that this Court consider the merits of

 7 her appeal. [response 1] Alternatively, Defendant requests that this Court issue a

 8 limited remand to the district court for entry of the requisite final order. [response 2]

 9 Defendant’s request is not well taken. Because there is obvious confusion as to what

10 we held was the proper procedure to enter conditional pleas in the magistrate courts

11 and resolve their appeal in the district courts in Celusniak, we reiterate our directive

12 as follows:

13         In magistrate court, the defendant may enter a conditional plea of guilty
14         or no contest, reserving one or more issues for appeal. The magistrate
15         court then enters a judgment and sentence that embodies the provisions
16         of the plea agreement. Rule 6-502(D)(3) (plea agreement procedure in
17         magistrate court). The judgment should also expressly set out the issues
18         reserved for appeal. See Form 9-408C NMRA [(]2004[)] (conditional
19         plea). The defendant has [fifteen] days to file his or her notice of appeal
20         to the district court. The district court hears only the matters reserved,
21         and it hears these de novo. The district court then issues an order
22         resolving the matters before it. For example, on a motion to suppress, if
23         the court rules in the defendant’s favor, it will enter an order granting the
24         motion to suppress; if not, it will enter an order denying it and, as it has
25         ruled on all the matters before it, dismissing the appeal.

26 Celusniak, 2004-NMCA-070, ¶ 10.

                                                3
1   {4}   In this case, we find neither the magistrate court nor counsel, nor the district

2 court following this procedure. The district court’s order granting or denying the

3 suppression must, if that is the only issue concerned in the appeal, also contain

4 language dismissing the appeal when the issue(s) on appeal have been resolved. There

5 being no such language in this case, the district court’s order is not final, and we have

6 no jurisdiction to consider this appeal and, accordingly, dismiss it.

7   {5}   IT IS SO ORDERED.



8                                          ___________________________________
9                                          RODERICK T. KENNEDY, Chief Judge


10 WE CONCUR:



11 ___________________________
12 JAMES J. WECHSLER, Judge



13 ___________________________
14 CYNTHIA A. FRY, Judge




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