State v. Weddle

Decision Date06 February 1967
Docket NumberNo. 8203,8203
Citation77 N.M. 417,423 P.2d 609,1967 NMSC 27
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Carl C. WEDDLE, Defendant-Appellant.
CourtNew Mexico Supreme Court
OPINION

PER CURIAM:

Upon consideration of this appeal we adopt the following language from the opinion of the Court of Appeals prepared by Court of Appeals Judge LaFel E. Oman:

,'The appellant, at all times material hereto, has been confined in the New Mexico State Penitentiary pursuant to a plea of guilty to the crime of armed robbery and a sentence to confinement in the New Mexico State Penitentiary for a term of not less than three years nor more than twenty-five years.

On April 15, 1966, he filed a motion for an order vacating the sentence and discharging him from custody. The motion was filed pursuant to the provisions of Rule 93 of the Rules of Civil Procedure for the district courts of the State of New Mexico, which is identical with N.M.Laws 1966, ch. 29, § 1, which appears as § 41--15--8, N.M.S.A.1953, 1966 Interim Supplement.

On May 11, 1966, an order was entered by the district court denying the motion. It was from this order that appellant sought to take this appeal.

On July 2, 1966, he filed what he has denominated 'A laymans application for the motion of appeal.'

Rule 93(e) of the Rules of Civil Procedure provides:

'(e) Appeal. An appeal may be taken from the order entered on the motion as from a final judgment in the manner and within the time provided in Supreme Court Rule 5.'

The Supreme Court Rule 5 appears as § 21--2--1(5), N.M.S.A.1953. This rule in part provides as follows:

'1. Within thirty days from the entry of any final judgment in any civil action any party aggrieved may appeal therefrom to the Supreme Court except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment, the district court may extend the time for appeal not exceeding thirty days from the expiration of the original time herein prescribed. * * *

'* * *.

'Appeals, as provided by law, shall be taken by filing a notice of appeal with the district court in which the judgment or order appealed from is rendered. The notice of appeal shall specify the parties taking the appeal and shall designate the judgment, order or part thereof appealed from. * * *'

The application filed by appellant on July 2, 1966, fails to comply with the requirements of Supreme Court Rule 5(5), but the disposition of this appeal is not predicated upon such failures of compliance.

The transcript shows that appellant was promptly mailed a copy of the order of May 11, 1966, along with a letter from the district judge dated May 10, 1966.

On July 19, 1966, the district judge wrote appellant, advising that the district judge had received the application for appeal, and that he had entered an order granting the appeal, although the application may not have been timely filed. The order, to which the district judge referred in his letter of July 19, was also dated July 19 and was filed July 20. This order does not purport to extend the time for...

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5 cases
  • State v. Aqui
    • United States
    • New Mexico Supreme Court
    • 24 Junio 1986
    ...We must first determine whether we have jurisdiction. See Rice v. Gonzales, 79 N.M. 377, 444 P.2d 288 (1968); State v. Weddle, 77 N.M. 417, 423 P.2d 609 (1967). Whether we have jurisdiction depends upon the nature of the remedy filed in the trial court. There are a number of potential remed......
  • Morris v. Merchant
    • United States
    • New Mexico Supreme Court
    • 6 Febrero 1967
    ... ... The matters of laches and res judicata are affirmative defenses. Rule 8(c), Rules of Civil Procedure for the district courts of the State of New Mexico. However, before the effects of the affirmative defenses need be considered, appellants first had to establish their right to the ... ...
  • State v. Sisk
    • United States
    • New Mexico Supreme Court
    • 27 Mayo 1968
    ...and, accordingly, we are without jurisdiction to consider points addressed to claimed errors in the court's action. State v. Weddle, 77 N.M. 417, 423 P.2d 609 (1967). On April 29, 1966, petitioner filed a motion to vacate judgment and sentence which was followed, on May 5, 1966, by a supple......
  • State v. McNeece, 529
    • United States
    • Court of Appeals of New Mexico
    • 12 Febrero 1971
    ...* * *' State v. Arnold, 51 N.M. 311, 183 P.2d 845 (1947). We may raise the question of jurisdiction on our own motion. State v. Weddle, 77 N.M. 417, 423 P.2d 609 (1967); State v. Arnold, Is the conviction and sentence of defendant under an inapplicable statute a question of jurisdiction? We......
  • Request a trial to view additional results

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