Romero v. State, 010821 NMSC, S-1-SC-37602

• Docket Nº: S-1-SC-37602
• Party Name: ROGER ROMERO, Petitioner-Appellee, v. STATE OF NEW MEXICO, Respondent-Appellant.
• Attorney: Office of the Twelfth Judicial District Attorney John P. Sugg, District Attorney James W. Grayson, Assistant District Attorney Alamogordo, NM for Appellant Gary C. Mitchell, P.C. Gary C. Mitchell Ruidoso, NM, Zach Cook, LLC, Zachary J. Cook Ruidoso, NM for Appellee
• Judge Panel: MICHAEL E. VIGIL, Chief Justice, BARBARA J. VIGIL, Justice, C. SHANNON BACON, Justice. DAVID K. THOMSON, Justice, JUDITH K. NAKAMURA, Justice, Retired Sitting by Designation
• Case Date: January 08, 2021
• Court: Supreme Court of New Mexico

ROGER ROMERO, Petitioner-Appellee,

v.

STATE OF NEW MEXICO, Respondent-Appellant.

No. S-1-SC-37602

Supreme Court of New Mexico

January 8, 2021

This decision of the Supreme Court of New Mexico was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Supreme Court.

APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY James Waylon Counts, District Judge

Office of the Twelfth Judicial District Attorney John P. Sugg, District Attorney James W. Grayson, Assistant District Attorney Alamogordo, NM for Appellant

Gary C. Mitchell, P.C. Gary C. Mitchell Ruidoso, NM, Zach Cook, LLC, Zachary J. Cook Ruidoso, NM for Appellee

DISPOSITIONAL ORDER OF TRANSFER

{¶1} WHEREAS, this matter having come before the Court upon the State's appeal from a district court order insofar as it granted Petitioner's petition for writ of habeas corpus, see Rule 12-102(A)(3) NMRA (providing for direct appeals to the Supreme Court from the granting of writs of habeas corpus under Rule 5-802 NMRA);

{¶2} WHEREAS, every member of the Court having considered the briefs and being otherwise fully informed on the issues and applicable law;

{¶3} WHEREAS, the State on appeal challenges the district court's exercise of postconviction jurisdiction under both Rule 5-802 and Rule 5-803 NMRA in seeking to vacate the district court's order setting aside Petitioner's magistrate court conviction for accumulating waste on his property in violation of Lincoln County, N.M. Ordinance 2016-02 (Aug. 16, 2016);

{¶4} WHEREAS, this Court determines that, at the time his petition was filed, Petitioner was no longer "in custody or under restraint" for purposes of habeas corpus jurisdiction, as required by Rule 5-802(A);

{¶5}WHEREAS, Rule 5-803(A) governs a petition for postsentence relief when a Petitioner "is not in custody or under restraint as a result of" a challenged conviction;

{¶6} WHEREAS, this Court determines that the district court had jurisdiction over this matter solely by reason of Rule 5-803;

{¶7} WHEREAS, the Court of Appeals has jurisdiction over appeals taken from a district court order setting aside a conviction, see Rule 12-102(B); and

{¶8} WHEREAS, NMSA 1978, Section 34-5-10 (1966) provides for the...