State v. Martinez, 508 P.2d 36 (N.M. Ct. App. 1973). · Go Syfert
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State v. Martinez, 508 P.2d 36 (N.M. Ct. App. 1973). Cases Citing This Book View Copy Cite
18 citation events (2 in the last 25 years) across 1 distinct court.
Strongest positive: Ennis v. Kmart Corp. (nmctapp, 2001-06-21)
Top citers, strongest first. 3 distinct citers.
discussed Cited as authority (rule) Ennis v. Kmart Corp.
N.M. Ct. App. · 2001 · confidence medium
We held that these circumstances provided “a basis ... for avoiding the effect of the rules.” Id. (quoting State v. Martinez, 84 N.M. 766, 767 , 508 P.2d 36, 37 (Ct.App.1973)). {10} We hold that, under Rule 1-005(E), a court clerk lacks the discretion to reject pleadings for technical violations and that a pleading will be considered filed when delivered to the clerk.
discussed Cited as authority (rule) State v. Rickard
N.M. Ct. App. · 1994 · confidence medium
Instead, a request to withdraw a plea should be raised in a post-conviction proceeding, see State v. Martinez, 84 N.M. 766, 767 , 508 P.2d 36, 37 (Ct.App. 1973), and nothing in this opinion should be construed to preclude Defendants from seeking post-conviction relief.
discussed Cited as authority (rule) State v. Aaron
N.M. Ct. App. · 1985 · confidence medium
As the state notes, his claim is circumstantially supported by his certificate of service, and under the circumstances the appeal should be considered timely because “a basis exists for avoiding the effect of the rules.” State v. Martinez, 84 N.M. 766, 767 , 508 P.2d 36, 37 (Ct.App.1973); State v. Garlick, 80 N.M. 352 , 456 P.2d 185 (1969).
STATE of New Mexico, Plaintiff-Appellee,
v.
Archie MARTINEZ and Michael A. Garcia, Defendants-Appellants
1075.
New Mexico Court of Appeals.
Mar 9, 1973.
508 P.2d 36
Jeffrey L. Fornaciari, Taos, for defendants-appellants., David L. Norvell, Atty. Gen., Dee C. Blythe, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
Wood, Sutin, Lopez.
Cited by 9 opinions  |  Published

OPINION

WOOD, Chief Judge.

Defendants pled guilty to burglary. Section 40A-16-3, N.M.S.A.1953 (2nd Repl. Vol. 6). Their appeals assert their pleas were involuntary and their convictions were constitutionally invalid. In addition, they claim fundamental error.

? we have no jurisdiction. The record indicates the appeals were not filed within the time provided by the applicable rules and there is no claim that a basis exists for avoiding the effect of the rules. Section 21-2-1(5) (1), N.M.S.A.1953 (Repl. Vol. 4). See State v. Garlick, 80 N.M. 352, 456 P.2d 185 (1969); State v. Sedillo, 81 N.M. 622, 471 P.2d 192 (Ct.App.1970).

Second, we cannot hold there was fundamental error as a matter of law. The conflicts in the record are such that we cannot say there was error which went to the foundation of the case or which deprived defendants of rights essential to their defense. See Smith v. State, 79 N.M. 450, 444 P.2d 961 (1968); State v. Jaramillo (Ct.App.), 84 N.M. 800, 498 P.2d 687, decided February 16, 1973.

Third, the merits of the remaining contentions were never presented to nor ruled on by the trial court and, thus, cannot be raised for the first time on appeal. State v. Colvin, 82 N.M. 287, 480 P.2d 401 (Ct.App.1971); State v. Tafoya, 81 N.M. 686, 472 P.2d 651 (Ct.App.1970).

Fourth, the claims made, if true, would raise serious questions as to the constitutional validity of the guilty pleas. However, because of the conflicts in the record, we cannot say there is a basis for the claims. These claims may be asserted in a motion for post-conviction relief. Section 21-1-1(93), N.M.S.A.1953 (Repl.Vol. 4).

The appeal is dismissed.

It is so ordered.

SUTIN and LOPEZ, JJ., concur.