 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
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 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                           NO. 30,746

10 PATRICK MAZZEI,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Robert M. Schwartz, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Fuentes & Associates, P.C.
18 Robert R. Fuentes
19 Rio Rancho, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 VIGIL, Judge.

23          Defendant appeals from a conditional plea and disposition agreement in which

24 he pleaded guilty to one count of aggravated driving under the influence (Fourth or
 1 Subsequent Offense). [RP 115] This Court issued a calendar notice proposing to

 2 dismiss Defendant’s appeal for lack of a final order. Specifically, we proposed to

 3 conclude that because sentencing was left pending while the Defendant’s case was

 4 referred to drug court, and because no final judgment and sentence was entered,

 5 Defendant’s notice of appeal was premature. See State v. Garcia, 99 N.M. 466, 471,

 6 659 P.2d 918, 923 (Ct. App. 1983) (holding that in a criminal case the final judgment

 7 is the judgment and sentence or an order dismissing all charges against the defendant).

 8        Defendant has filed a response to this Court’s notice of proposed summary

 9 disposition. In his response, Defendant concurs with this Court’s proposed disposition

10 of dismissal. We therefore dismiss Defendant’s appeal as premature. Defendant may

11 re-file his appeal once a final judgment and sentence has been entered.

12        IT IS SO ORDERED.



13                                                _______________________________
14                                                MICHAEL E. VIGIL, Judge
15 WE CONCUR:



16 _________________________________
17 MICHAEL D. BUSTAMANTE, Judge



18 _________________________________
19 RODERICK T. KENNEDY, Judge

                                              2
