Arellano v. Velarde

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. [6] 7 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 8 ALICE ARELLANO, 9 Petitioner-Appellee, 10 v. NO. 29,786 11 TOBY ARSENIO VELARDE, 12 Respondent-Appellant. 13 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY 14 Sam B. Sanchez, District Judge 15 New Mexico Legal Aid, Inc. 16 Maija West 17 Taos, NM 18 for Appellee 19 William A. ´Esperance 20 Albuquerque, NM 21 for Appellant 22 MEMORANDUM OPINION 23 BUSTAMANTE, Judge. 1 Defendant appeals a finding that he violated the terms of an order of protection 2 and ordering him jailed for ninety days. In our notice, we proposed to affirm the 3 district court order. Plaintiff has responded with support for our proposal. Defendant 4 has responded by filing an amended docketing statement and a motion to dismiss the 5 appeal as moot. We affirm. 6 Rule 12-210(D) NMRA, states that after the notice of proposed summary 7 disposition is served, counsel may “file a memorandum setting forth reasons why the 8 proposed disposition should or should not be made and why the case should or should 9 not be assigned to the summary calendar.” However, the party is limited to arguing 10 issues raised in the docketing statement. The docketing statement may be amended 11 for good cause shown with the permission of this Court. Rule 12-210 (D)(3). 12 Defendant filed no memorandum in response to the summary calendar notice. Under 13 such circumstances, we issue an opinion consistent with the reasoning in the calendar 14 notice. See Frick v. Veazey, 116 N.M. 246, 247 , 861 P.2d 287, 288 (Ct. App. 1993) 15 (stating that failure to file memorandum in opposition constitutes acceptance of the 16 disposition proposed). 17 We cannot construe Defendant’s amended docketing statement as a response 18 to the calendar notice, even though our notice pointed out that the first docketing [2] 1 statement was lacking in citation to the facts of the case. The amended docketing 2 statement does not address the proposals in the calendar notice. Further, Defendant 3 has filed no motion to amend the docketing statement as required by State v. Rael, 100 4 N.M. 193 , 197, 668 P.2d 309, 313 (Ct. App. 1983). Therefore, we decline to consider 5 the amended docketing statement. 6 Finally, Defendant has filed a motion to dismiss his appeal as moot as he 7 contends that he has served the sentence of the court. Dismissal upon motion of the 8 appellant, without concurrence by appellee, is completely discretionary with this 9 Court. Rule 12-401(B) NMRA. Under the circumstances of this case, we decline to 10 dismiss the appeal. Simply because Defendant has served his sentence does not mean 11 that the appeal is moot. See State v. Jose S., 2005-NMCA-094, ¶ 7 , 138 N.M. 44 , 116 12 P.3d 115 (addressing issues even though sentence had been served). 13 Therefore, for the reasons stated in the calendar notice, we affirm. 14 IT IS SO ORDERED. [15] 16 MICHAEL D. BUSTAMANTE, Judge 17 WE CONCUR: [18] 19 CYNTHIA A. FRY, Chief Judge [1] 2 JONATHAN B. SUTIN, Judge