State v. Judd, No. 29,460 (N.M. Ct. App. Nov. 2, 2009). · Go Syfert
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State v. Judd, No. 29,460 (N.M. Ct. App. Nov. 2, 2009). Book View Copy Cite
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State
v.
Judd
29,460.
New Mexico Court of Appeals.
Nov 2, 2009.
Unpublished opinion
Unpublished
This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v. NO. 29,460

KEITH RUSSELL JUDD,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Neil C. Candelaria, District Judge

Gary K. King, Attorney General
Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender
Nancy M. Hewitt, Assistant Appellate Defender
Santa Fe, NM

for Appellant

MEMORANDUM OPINION

VIGIL, Judge.

1 Defendant appeals the district court denial of his motion to vacate a 2 dismissal of charges. Defendant urged the district court to make the dismissal with 3 prejudice rather than without prejudice. We proposed to dismiss the appeal on the grounds that Defendant was not aggrieved by the order. Defendant has timely responded. We have considered his arguments and not being persuaded, we dismiss the appeal.

Defendant argues that this Court is incorrect in proposing to conclude that he is not an aggrieved party. He argues that a dismissal with prejudice is very different from a dismissal without prejudice. We agree. However, as we pointed out in our notice, charging decisions are the sole province of the prosecutor. See State v. Gonzales, 2002-NMCA-071, ¶ 18, 132 N.M. 420, 49 P.3d 681 (discussing the duty of the district attorney regarding charging decisions and the broad discretion given to the district attorney in those matters).

Further, as recognized by Defendant, any further prosecution on these charges is time-barred. See NMSA 1978, § 30-1-8(C) (2009) (stating time limit for commencing prosecution of misdemeanor). In all practicality because the charges were not reinstated within the statute of limitations, Defendant is not aggrieved by the district court order denying his motion.

For the reasons stated herein and in the notice of proposed disposition, we dismiss the appeal.

IT IS SO ORDERED.

MICHAEL E. VIGIL, Judge WE CONCUR:

CYNTHIA A. FRY, Chief Judge

JONATHAN B. SUTIN, Judge