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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. 32,564

 5 MANUEL FERNANDEZ,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
 8 Sarah C. Backus, District Judge


 9   Gary K. King, Attorney General
10   Santa Fe, NM
11   Jane A. Bernstein, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14   Law Office of the Public Defender
15   Jorge A. Alvarado, Chief Public Defender
16   J.K. Theodosia Johnson, Assistant Appellate Defender
17   Santa Fe, NM

18 for Appellant
 1                             MEMORANDUM OPINION

 2 KENNEDY, Chief Judge.

 3   {1}   Manuel Fernandez (Defendant) appeals from his conviction for criminal

 4 damage to property valued in excess of $1,000 on the grounds of insufficiency of the

 5 evidence. He also appeals from his sentencing as a habitual offender, arguing that the

 6 State made no prima facie showing of three prior usable felonies. The State responds

 7 that Defendant has a motion to reconsider sentence pending and, therefore, his

 8 judgment and sentence lacks finality.

 9 I.      BACKGROUND

10   {2}   Defendant filed a motion for reconsideration of his sentence on August 29,

11 2012, stating that the State had provided the district court with “inadmissible evidence

12 to prove Defendant’s alleged priors” and that he had additional mitigating factors to

13 present. Judgment and sentence were entered against Defendant on October 22, 2012,

14 and a hearing on his motion to reconsider was scheduled for November 27. Defendant

15 filed a notice of appeal with this Court on November 13, 2012. At the hearing on the

16 motion to reconsider, the district court concluded that it did not have jurisdiction to

17 rule on the motion as a result of Defendant’s appeal.




                                              2
 1 II.     DISCUSSION

 2   {3}   Rule 5-801(B) NMRA permits the district court to exercise its discretion to

 3 correct or reduce sentences in response to a defendant’s timely motion. State v.

 4 Herbstman, 1999-NMCA-014, ¶ 8, 126 N.M. 683, 974 P.2d 177. Once a defendant

 5 files a notice of appeal, the district court typically loses jurisdiction over the case for

 6 the pendency of the appeal. State v. Garcia, 1983-NMCA-017, ¶ 15, 99 N.M. 466,

 7 659 P.2d 918. In cases in which a defendant has made a proper motion for sentence

 8 modification under Rule 5-801, however, the district court must resolve the motion

 9 prior to the appeal in order to establish finality. State v. Romero, 2014-NMCA-063,

10 ¶ 5, 327 P.3d 525. The matter cannot be appealed until the district court demonstrates

11 that finality formally by means of a written ruling. Id. ¶ 8.

12   {4}   Here, Defendant’s motion to reconsider his sentence was properly made

13 pursuant to Rule 5-801, stating that he wished to present additional mitigating factors

14 to the district court. It is within the district court judge’s discretion to consider

15 mitigating factors during sentencing and even to reduce the defendant’s sentence if the

16 judge deems it appropriate. Swafford v. State, 1991-NMSC-043, ¶ 40, 112 N.M. 3,

17 810 P.2d 1223. The district court retained jurisdiction to address the motion on those

18 grounds. Romero, 2014-NMCA-063, ¶ 5. Nonetheless, the district court declined to

19 rule on the motion after Defendant filed his appeal, stating that it would not consider

20 the matter because “the Court of Appeals will be able to make [that] decision.”

                                                3
 1   {5}   Under Romero, the district court must first issue a formal ruling on motions to

 2 reconsider sentence under Rule 5-801 before a defendant may appeal. Id. In this case,

 3 the district court has not yet produced a formal, written ruling on Defendant’s motion

 4 for reconsideration of his sentence, nor has he withdrawn the motion. Therefore, with

 5 the motion still unresolved, this case lacks the finality required for appellate review.

 6 III.    CONCLUSION

 7   {6}   For the reasons stated above, we hereby dismiss Defendant’s appeal for lack of

 8 a final order.

 9   {7}   IT IS SO ORDERED.



10                                         ____________________________________
11                                         RODERICK T. KENNEDY, Chief Judge

12 WE CONCUR:


13 ___________________________
14 MICHAEL E. VIGIL, Judge


15 ___________________________
16 M. MONICA ZAMORA, Judge




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