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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO, DEPARTMENT 3 OF PUBLIC SAFETY TECHNICAL SUPPORT 4 AND STATE POLICE DIVISIONS, 5 6 v. 7 HONORABLE LARRY JONES 8 TORRANCE COUNTY MAGISTRATE, 9 10 and 11 JESSICA PHILLIPS, 12

Petitioners-Appellants, NO. 29,380

Respondent-Appellee

Real-Party-in-Interest.

13 APPEAL FROM THE DISTRICT COURT OF TORRANCE COUNTY 14 Kevin R. Sweazea, District Judge 15 Rosemary P. McCourt, Deputy Chief Counsel 16 Department of Public Safety 17 Santa Fe, NM 18 for Appellants 19 Gary K. King, Attorney General 20 Santa Fe, NM 21 for Appellee

1 Dennis K. Wallin 2 Moriarty, NM 3 for Real Party in Interest 4 5 VIGIL, Judge. 6

MEMORANDUM OPINION

The Department of Public Safety (DPS) appeals from the district court denial

7 of its petition for a writ of superintending control, or, in the alternative, writ of 8 prohibition or writ of mandamus. This Court issued a calendar notice proposing to 9 dismiss DPS's appeal as untimely. DPS has filed a memorandum in opposition to this 10 Court's proposed summary dismissal, arguing that judicial miscommunication was 11 partly to blame for DPS's untimely notice of appeal. Having considered DPS's 12 argument, we are unpersuaded. We therefore dismiss for an untimely notice of appeal. 13

DPS is attempting to appeal a magistrate judge's act of expunging a criminal

14 arrest and conviction record. DPS filed a petition for a writ of superintending control, 15 or, in the alternative, writ of prohibition or writ of mandamus in the district court. The 16 district court order denying DPS's petition was entered on February 5, 2009. [RP 53] 17 DPS then had thirty days within which to file its notice of appeal, or on or before 18 Monday, March 9, 2009. See Rule 12-201(A)(2) NMRA; Rule 12-308(A) NMRA. 19 Although DPS filed a notice of appeal with this Court within thirty days of the district

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1 court order, DPS did not file its notice of appeal with the district court until March 2 13, 2009. [RP 56] See Rule 12-202(A) NMRA (providing that an appeal from the 3 district court "shall be taken by filing a notice of appeal with the district court within 4 the time allowed by Rule 12-201"); Lowe v. Bloom, 110 N.M. 555, 556, 798 P.2d 156, 5 157 (1990) ("[T]he very concept of a timely filing (Rule 12-201) includes the concept 6 that the party has substantially complied with applicable place-of-filing requirements 7 (Rule 12-202(A))."); see also NMSA 1978,

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