The slip opinion is the first version of an opinion released by the Clerk of the Court of Appeals. Once an opinion is selecte d for publication by the Court, it is assigned a vendor

- neutral citation by the Clerk of the Court for compliance with Rule 23

- 112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion. IN THE C OURT OF APPEALS OF THE STATE OF NEW MEXICO 1
Opinion Number: _____________ 2
Filing Date: December 20, 2023 3

No. A

- 1

- CA

- 37868 4

STATE OF NEW MEXICO , 5

Plaintiff

- Appellee , 6

v. 7

JA’KARL AHMED JENKINS a/k/a 8 JA KARL AHMED JENKINS a/k/a 9 JAKARL JENKINS, 10

Defendant

- Appell ant

. 11

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Charles W. Brown, District Court Judge 13
Raúl Torrez, Attorney General 14 Santa Fe, NM 15 Leland M. Churan, Assistant Attorney General 16 Albuquerque, NM 17
for Appellee 18
Bennett J. Baur, Chief Public Defender 19 Caitlin C. M. Smith, Assistant Appellate Defender 20 Santa Fe, NM 21

f or Appellant 22OPINION 1
DUFFY, J udge

. 2

{1} Defendant Ja’Karl Jenkins appeals the district court’s denial of hi s Rule 5

- 801 3

NMRA motion for reconsideration of sentence . The district court ruled that it did 4
not have jurisdiction to hear t he motion because it was not timely filed within ninety 5
days of when the sentence was imposed, and alternatively, that the defense was 6
required, but failed, to present new information that was un available at the t ime of 7
the original sentencing. On appeal Defendant argues that his motion was timely 8

because it was filed seventy

- eight days after the judgment and sentence was filed, 9
and the district court erred in using the date of oral sentencing as the starting point 10
for the ninety

- day period

. Defendant also argues that Rule 5

- 801 does not require 11

that the evidence presented in support of the motion be unavailable at the time of the 12
original sentencing hearing

. The State urges this Court not to reach the merits of 13
these issues on grounds that Defendant’s plea agreement precludes his appeal and 14
because errors in Defendant’s appellate filings render this Court without jurisdiction 15
to hear the appeal

. We conclude that none of the threshold issues raised by the State 16
prevent us from reaching the merits of Defendant’s appeal. On the merits, w e hold 17

that Rule 5

- 801 motions are timely if filed within ninety days of the entry of the 18
judgment and sentence and that Rule 5

- 801 does not require a defendant to provide 192 information that was unavailable at the time of sentencing

. Therefore, we reverse on 1

both issues. 2

BACKGROUND 3

{2 } Defendant p lead ed guilty and was orally sentenced at a hearing on June 28, 4

2018. At the sentencing hearing , t he district court received a pretrial s ervices report, 5
a sentencing memorandum from the Law Offices of the Public D efender (LOPD) , 6

seve ral letters, and a psychological evaluation prepared by Dr. William Foote. The 7
defense presented evidence of Defendant’s serious developmental disabilities and 8
his trauma from witnessing a fatal shooting. Noting that Defendant was nineteen 9
years old at the time of his conviction, defense counsel a sked the court to refer 10

Defendant to young adult c ourt , a specialty court focused on rehabilitation , or in the 11
alternative, one year of house arrest wit h zero tolerance for violations followed by 12
probation . The district court orally sentenced D efendant to a term of nine years 13
imprisonment with the remainder of his sentence suspended

. The court filed an order 14
remanding Defendant into custody immediately after the hearing. T he final 15
judgment and sentence was filed thirty

- three days later, on July 31, 2018. 16

{3 } Defendant filed a motion for reconsideration of sentence on October 17, 2018

. 17

Defendant submitted reports from a social worker at the LOPD and a report from 18

Dr . George Davis. Defendant requested that the district c ourt review Dr. Davis’s 19
report, findings , and recommendat ions and reconsider Defendant’s sentence

. The 203 State filed a response arguing that Defendant’s motion was untimely because it was 1
not filed within ninety days of the sentencing hearing where the sentence was oral ly 2

announced

. 3

{4 } At the hearing on the motion , the district court ruled that it did not have 4
jurisdiction because the ninety

- day deadline began to run at the oral announcement 5

of the sentence. The district court also ruled that timeliness is “ only half the test 6
that’s to be applied t o see if a motion to reconsider i s proper. The other thing it has 7
to include [is] new information which was not available to the court at the time of 8
the original sentencing.” The court stated that Dr. Davis could have evaluated 9
Defendant before the sentencing hearing, and concluded that even though Dr. Davis 10

had provided some new information , “ it was available prior to the sentencing. It has 11

to be new information that was unavailable.” On these two bases, the court denied 12

the motion. Defendant appeals

. 13

DISCUSSION 14

I. Waiver a nd Jurisdiction 15

{5 } T he St a te raises two threshold issues that we must address before turning to 16
the merits of the appeal , (1) whether Defendant ’s plea agreement precludes his 17
appeal and (2) whether this Court has jurisdiction to hear the appeal given the 18
procedural defects in Defendant’s appeal. We address each in turn. 194 A. Defendant’s Plea Agreement 1

{6 } T he State first argues that Defendant ’s plea agreement waived his right to 2
appeal the district court’s ruling on the post

- conviction motion at issue here

. In 3
support of its position , the State notes only t hat in State v. Chavarria , 2009

- NMSC

4
020, 146 N.M. 251, 208 P.3d 89 6 , our Supreme Court held that a n appellate waiver 5

in a voluntary plea agreement ordinarily constitutes a waiver of the defendant’s right 6
to appeal his sentence other than on jurisdictional grounds. Id. ¶¶ 9 , 16

. T he S tate 7

has offered no argu ment, authority , or analysis to explain why this principle should 8

be c onstrued to apply to bar a post

- judgment motion or legal errors in the 9
proceedings thereon. See Headley v. Morgan Mgmt. Corp. , 2005

- NMCA

- 045, ¶ 15, 10
137 N.M. 339, 110 P.3d 1076 (explaining that appellate courts do not review 11
undeveloped arguments). N or has the State explored the potential scope and 12
impl ications of such a construction, s ee , e.g. , Rule 5

- 803 NMRA , or undertaken the 13

sort of case
- specific contractual analysis required when the language of a plea 14
agreement is at issue

. See State v. Miller , 2013

- NMSC

- 048, ¶ 9, 3 14 P.3d 655

. 15

Because the State’s argument is undeveloped, we decline to consider it further. 1 16

1 The State also argues for the first time on appeal that the appellate waiver precluded Defendant from filing a Rule 5

- 801 motion in the first place. Curiously, however, the State also argues that “the jurisdictional issue in this case is ultimately immater ial because Defendant is not precluded from filing another Rule 5

- 801(A) motion following the outcome of this appeal.” It is ultimately unnecessary to resolve the State’s inconsistent positions because the State has not developed an y analysis regarding the language of the plea agreement. See Miller , 2013

- NMSC

- 048, ¶ 9 . We5 B

. Jurisdiction 1

{7 } Defendant’s appeal suffers from two procedural problems that implicate our 2
jurisdiction

. First, defense counsel never filed a notice of appeal , but instead filed a 3

d ocketing statement to open the appeal

. See Rule 12

- 202(A) NMRA (“An appeal 4
permitted by law as of right from the district court shall be taken by filing a notice 5
of appeal with the district court clerk within the time allowed by Rule 12

- 201 6
NMRA.”). Second , even if we were to treat Defendant’s docketing statement as a 7
notice of appeal , it was filed late. See Rule 12

- 201(A)(1)(b) (“A notice of appeal 8

shall be filed

. . . for all other appeals, within thirty (30) days after the judgment or 9
order appealed from is filed in the district court clerk’s office.”). The State argues 10

that these errors prevent this Court from exercising jurisdiction over the appeal

. See 11

Govich v. N. Am. Sys. , Inc. , 1991

- NMSC

- 061, ¶ 12, 112 N.M. 226, 814 P.2d 94 12
( holding that the appellate rules for the time and place of filing of a notice of appeal 13

are a mandatory precondition to the exercise of jurisdiction)

. While these errors have 14
unnecessarily complicate d this appeal , we conclude that neither of them deprive this 15

Court of jurisdiction to address the merits of the appeal

. 16

acknowledge that the State offered additional argument regarding the appellate waiver in its supplemental brief. However, that discussion is beyond the scope of our supplemental briefing order, which permitted the parties to brief a jurisdictional issue that was not otherwise discussed in their briefing. It was not designed to give the State a second bite at the apple for issues that were otherwise raised but not developed in its answer brief.6 {8 } Turning first to the fact that Defendant’s initial filing was a docketing 1
statement instead of a notice of appeal, o u r Supreme Court has held that a docketing 2

statement can function as a notice of appeal under Rule 12

- 202 as long as it 3

subst antially complies with and provides the information required by Rule 12

- 4
202(B)

. See Marquez v. Gomez , 1990

- NMSC

- 101, ¶¶ 6

- 7, 111 N.M. 14, 801 P.2d 5

84 ; Rule 12

- 202(B), (C) (stating that a notice of appeal shall identify the parties, the 6
name and address of counsel, the name of the court to which the appeal is taken, and 7
include a copy of the judgment or order appealed from). The docketing statement in 8
this case contained all of the substantive information required by Rule 12

- 202(B), 9
but did not include as an attachment the order Defendant appeals from

— likely 10
because the docketing statement was filed before the district court entered its order. 2 11
Nevertheless, a docketing statement suffices “if the intent to appeal a specific 12
judgment fairly can be inferred from the notice of appeal and if the appellee is not 13
prejudiced by any mistake.” Govich , 1991

- NMSC

- 061, ¶ 13 ; see also Rule 12

- 14
312(C) NMRA (stating that a timely appeal “shall not be dismissed for technical 15

violations of Rule 12

- 202 which do not affect the substantive rights of the parties”). 16

2 In cases where a notice of appeal is filed before the district court’s order is entered, our Rules of Appellate Procedure treat the notice of appeal as if it had been filed the same day the lower court’s order was filed

. See Rule 12

- 201(A)(3) ( “A notice of appeal filed after the announcement of a decision, or return of the verdict, but before the judgment or order is filed in the district court clerk’s office shall be treated as filed after that filing and on the day of the filing .”).7 T he State does not argue that Defendant’s intent to appeal the district court’s 1

decision can not be inferred from the docketing statement or that the State suffered 2
any prejudice from Defendant’s mistake

. Therefore, under the circumstances, it is 3
appropriate to t reat Defendant’s docketing statement as the functional equivalent of 4
a notice of appeal. 5

{9 } E ven accepting the docketing statement as a functional notice of appeal, the 6

document was not timely filed in the district court wit hin thirty days of entry of the 7
order denying Defendant’s motion. See Rule 12

- 202 (A) (requiring that notices of 8
appeal be filed with the district court clerk within the time limits set forth in Rule 9

12

- 201 ) ; Rule 12

- 201(A)(1)(b) (stating that the notice of appeal must be filed within 10
thirty days after the order appealed from is filed in the district court clerk’s office)

. 11
In this case, the district court’s order was filed on January 24, 2019. Defendant did 12

not file the docketing statement in the district court until September 17, 2019 , almost 13
eight months after the order was entered

. He did, however, file the docketing 14
statement in the Court of Appeals on January 9, 2019

— even before the district 15

court’s order wa s entered

— and certified that the docketing statement was 16

“ delivered /mailed” to the Second Judicial District Court on January 4, 2019. W e 17

must consider whether , under these circumstances, the late filing precludes this 18
Court from exercising jurisdiction over the appeal. See Govich , 1991

- NMSC

- 061, 19
¶ 12 208 {1 0 } N either party addressed this issue in their initial briefing . B ecause it is 1

incumbent on this Court to raise jurisdictional concerns sua sponte, we requested 2
supplemental briefing on the effect of the late filing

. Defendant responded by 3
arguing that the presumption of ineffective assistance of counsel adopted in S tate v. 4

Duran , 1986

- NMCA

- 125, 105 N.M. 231, 731 P.2d 374 , applies in this case , or 5
alternatively , that we should conclude counsel was ineffective under the 6

circumstances presented

. We are persuaded by Defendant’s second argument

. 7

{1 1 } As a general rule, “criminal defendants are not to be deprived of an appeal as 8
of right where a procedural defect results from ineffective assistance of counsel on 9
appeal

. ” Id. ¶ 3 . In Duran , this Court adopted a “conclusive presumption of 10
ineffective assistance of counsel where notice of appeal or affidavit of waiver are 11
not filed within the time limit required.” Id. ¶ 1

. We observed that New Mexico’s 12

rules of criminal procedure were designed to safeguard a defendant’s cons titutional 13
right to one appeal by requiring defense counsel , within the time limits set forth in 14
the rules of appellate procedure, to file with the court either a notice of appeal or an 15

affidavit waiving the appeal

. I d. ¶ 3 ( citing to NMSA 1978, Crim. P. Rule 54(b) 16
(Repl. 1985), the prior version of Rule 5

- 702(B) NMRA)

. Rather than continuing 17
the practice of litigating on a case

- by

- case basis whether a late filing was the result 18
of ineffective assistance, the Duran Court concluded that t he failure to timely file 19

eit her of these documents constituted ineffective assistance per s e , 1986

- NMCA

- 209 125 , ¶ ¶ 5, 10 (noting that “in the vast majority of our unpublished cases in which 1
defendants sought late appeals, late appeals were granted because there was no hint 2
of any reason for delay other than attorney neglect ”). A s a result, w hen the Duran 3
presumption applies, this Court will consider an appeal timely despite the late filing, 4
allowing us to reach the merits

. 5

{1 2 } Not all late

- filed criminal appeals benefit from the Duran presumption , 6
however, and t he State argues the Duran presum ption does not apply here because 7
Defendant ple a d ed guilty below. See State v. Peppers , 1990

- NMCA

- 057, ¶ 21, 110 8
N.M. 393, 796 P.2d 614 (holding that the Duran presumpt ion does not apply to 9
appeals from pleas of guilty or no contest). Without deciding whether the Duran 10
presumption applies as a general matter under the circumstances here, we note that 11

t his Court’s post

- Duran case law demonstrates that courts will continue to consider 12
whether ineffective assistance of counsel resulted in an untimely appeal on a case

13
by

- case basis when the Duran presumption does not otherwise apply. I n Peppers , 14
for example, this Court permitted the defendant’s untimely appeal because the case 15
presented an unusual fact pattern wherein the defendant was wholly without counsel 16
during the period of time in which he could have asserted his appellate rights. Id. 17
¶ ¶ 22

- 23. This Court concluded that under the circumstances, “it would be contrary 18
to the efficient administration of justice to remand for a hearing on the issue of 19
effective assistance of counsel and then reconsider the matter on a further appeal.” 2010 Id. ¶ 23. Therefore, th is Court held that it would “assume that the untimeliness of 1
the appeal was the consequence of ineffective assistance of counsel and will treat 2
[ the ] defendant’s appeal as if the notice had been filed in a timely fashion.” Id. 3

{1 3 } Likewise , i n State v. Manuelito , 1993

- NMCA

- 045, ¶ 1, 115 N.M. 394, 851 4
P.2d 516, defense counsel failed to timely file a notice of appeal in the district cou rt 5

after the defendant was convicted in metropolitan court. The district court dismissed 6
the defendant’s appeal on that basis. Id. ¶ 4. We reversed and reinstated the appeal , 7
concluding that the defendant was denied effective assistance of counsel

. Id. ¶¶ 8

- 9. 8

Th is Court held that “because [the d] efendant’s intent to appeal was evident, it 9
became the obligation of hi s counsel to protect this right

. ” I d

. ¶ 7 . T herefore , defense 10
counsel “had an obligation to file a timely notice of appeal in order to preserve his 11
client’s right to appeal.” Id. ¶ 8. 12

{1 4 } In this case, like Peppers , we assume the late filing of Defendant’s notice of 13
appeal in the district court was the result of ineffective assistance of counsel. Just as 14

in Manuelito , the record here contains clear evidence of Defendant’s intent to appeal. 15

T rial counsel filed a docketing statement with this Court on January 9, 2019 , and 16
certified that the docketing statement h ad been sent to the clerk of the Second 17

Judicial Dis trict Court on January 4, 2019

— well before the thirty

- day deadline for 18
filing the notice of appeal

. The r ecord contains no explanation for the eight

- month 19
delay between the filing of the docketing statement in the Court of Appeals and the 2011 Second Judicial District Court

. Regardless of the reason for the delay, the 1
untimeliness of Defendant’s notice of appeal is due primarily, if not solely, to the 2

fact that trial counsel failed to follow the rules of appellate procedure and filed the 3
wrong opening document in the wrong forum. But for these errors, Defendant’s 4
appeal would have been timely. Like Peppers , this case presents un usual facts , the 5
sum of which allow us to assume that the untimeliness of this appeal was the 6
consequence of ineffective assistance of counsel. As a result, we will treat 7
Defendant’s appeal a s if it had been timely filed. 8

{1 5 } In conclusion, although this appeal suffers from a number of procedural flaws , 9

none deprive this Court of jurisdiction or prevent us from reaching the merits of the 10
appeal

. 11

II

. Defendant’s Rule 5

- 801 Motion W as Timely 12

{1 6 } The primary issue presented in this appeal is whether Defendant’s motion for 13
reconsideration of sentence was timely filed “within ninety (90) days after the 14

sentence [ was ] imposed” as required by Rule 5

- 801(A). S ee Hayes v. State , 1988

- 15

NMSC

- 021, ¶ 8, 106 N.M. 806, 751 P.2d 186 (stating that the deadline set forth in 16

Rule 5

- 801 for filing a motion is jurisdictional). The answer depends on when the 17
time for filing the motion began to run . The State urges us to conclude that 18
Defendant’s sentence was imposed w hen the district court orally announced the 19

sentence , and that Defendant’s motion was untimely because it was filed 111 days 2012 after that date. Defendant contends that the time did not begin to run until the written 1
judgment and sentence was filed , and his motion was timely filed only seventy

- eight 2
days after that date

. The parties’ competing views require us to interpret Rule 5

- 801 3

to determine when a sentence is “ imposed ” for purposes of the rule. 4

{1 7 } “We apply the same rules of construction to procedural rules adopted by the 5
Supreme Court as we do to statutes.” State v. Miller , 2008

- NMCA

- 048 , ¶ 11, 143 6
N.M. 777, 182 P.3d 158. “In interpreting rules, we seek to give effect to the enacting 7
authority’s intent .” Roark v. Farmers Grp., Inc. , 2007

- NMCA

- 074, ¶ 50, 142 N.M. 8
59, 162 P.3d 896 ( alterations, internal quotation marks , and citation omitted). “ In 9
determining the proper application of procedural rules, our review is de novo. ” 10

Miller , 2008

- NMCA

- 048, ¶ 11. 11

{1 8 } Turning first to the plain language of Rule 5

- 801 , the rule does not specify 12

whether a sentence is imposed upon the oral announcement of sentence or the filing 13

of the written judgment and s entence . This very issue resulted in a federal circuit 14
split regarding the federal analogue to Rule 5

- 801 , Fed eral Rule of Criminal 15

Procedure 35. See Andrew P. Rittenberg, “Imposing” A Sentence Under Rule 35(C) , 16
65 U. Chi. L. Rev. 285 (1998). This split was eventually resolved by an amendment 17

to the r ule that defined sentencing as “the oral announcement of the sentence.” Fed. 18

R. Crim. P. 35 (c). 1913 {1 9 } Although the plain language of Rule 5

- 801 does not resolve the issue before 1

us , Defendant argues that previous cases interpreting and applying Rule 5

- 801 do. 2

In State v. Romero , this Court stated that “Rule 5

- 801 authorizes the filing of a 3
motion within ninety days of the entry of the judgment and sentence.” 2014

- NMCA

4
063, ¶ 11 , 327 P.3d 525 (contrasting the ninety

- day period for filing a Rule 5

- 801 5
motion with the shorter time limits in most civil rules g overning post

- judgment 6
motions). In other cases, courts have calculated whether a Rule 5

- 801 motion is 7
timely using the date the written judgment and sentence is filed. See State v. House , 8

1996

- NMCA

- 052, ¶ 26, 121 N.M. 784, 918 P.2d 370 (noting that the defendant’s 9

Rule 5

- 801 motion was timely because it was filed less than a month after the 10
judgment and sentence was filed ) , modified on other grounds , State v. Taylor , 2021

- 11

NM SC

- 023, ¶ 2, 491 P.3d 737 ; State v. Trujillo , 1994

- NMSC

- 066, ¶ 10, 117 N.M. 12
769, 877 P.2d 575 (holding that even if the defendant’s habeas petition could be 13

considered as a Rule 5

- 801 motion, the district court did not have jurisdiction 14
because “the petition was not filed until

. . . well after ninety days from the date the 15
district court filed its amended judgment an d sentence ” ); State v. Conant , A

- 1

- C

16

39063 , mem. op. ¶ 10 ( N.M. Ct. App. Sept. 11, 2023) (nonprecedential) (concluding 17
that the defendant’s motion challenging the amount of restitution ordered by the 18
district court must be brought within the time provided in Rule 5

- 801 and was 19
untimely because it was filed 258 days after the entry of the judgment and sentence). 2014 {20 } The State argues these cases do not provide the necessary facts and analysis 1
to conclude that a sentence is imposed only upon the filing of the judgment and 2

sentence

. I n Romero , however, an evaluation of the rule’s time requirements was 3
integral to this Court’s reasoning , and we cannot agree with the State’s suggestion 4
that our conclusion was merely dicta

. See 2014

- NMCA

- 063, ¶ 11 (acknowledging 5

that Rule 5

- 801’s requirement that motions be filed within ninety days of the entry 6
of judgment and senten ce created a “temporal anomaly” as to whether the judgment 7
was final for purposes of appeal ); see also Rule 5

- 801 comm. cmt. (citing Romero , 8

2014

- NMCA

- 063). Because our previous cases have consistently looked to the date 9
the judgment and sentence is filed , they are persuasive authority for the conclusion 10

that a senten ce is “ imposed ” for purposes of Rule 5

- 801(A) when the judgment and 11

sentence is filed. 12

{21 } The State also suggests that even if it is appropriate to rely on the date the 13
written judgment and sentence is filed in some cases, it is not the exclusive measure. 14

R elying on State v. Garcia , 2022

- NMCA

- 008, 504 P.3d 567, the State argues that in 15
some instances, a sentence is imposed “when the district court informs the defendant 16
orally of the sentence, reduces that sentence to writing, and the defendant begins 17
serving that sentence.” W e are not persuaded that the double jeopardy principles 18

discussed in Garcia require us to depart from Romero ’s assessment that “Rule 5

- 801 1915 authorizes the filing of a motion within ninety days of the entry of the judgment and 1

sentence.” Romero , 2014

- NMCA

- 063, ¶ 11. 2

{22 } In Garcia , we were asked to determine whether the district court’s decision to 3
increase the term of imprisonment in the defendant’s sentence violated double 4
jeopardy principles. 2022

- NMCA

- 008, ¶ 18. The district court announced the 5
defendant’s sentence orally at a sentencing hearing and remanded him into custody 6
after the hearing. Id. ¶ 15

. Before the district court entered the written judgment and 7
sentence, the defendant moved to reconsider his sentence, arguing that one of his 8
convictions should be vacated on double jeopardy grounds. Id. ¶ 16. The district 9
court agreed and resentenced the defendant twice , ultimately increasing the actual 10
term of imprisonment from ten to fifteen years. Id. ¶¶ 16

- 17. We concluded that the 11
subsequent imposition of a greater term of incarceration violated the defendant’s 12
right to be free from double jeopardy. Id. ¶ 28. 13

{23 } Garcia observed that “[t]he double jeopardy clauses of the United States and 14
New Mexico Constitutions protect a criminal defendant’s reasonable expectation of 15
finality in a sentence.” Id. ¶ 19 (internal quotation marks and c itation omitted). T h is 16
Court’s holding relied on a “well

- established principle of New Mexico law that a 17
trial court generally cannot increase a valid sentence once a defendant begins serving 18
that sentence” without violating the double jeopardy clauses of the state and federal 19

constitutions. Id. (emphasis added) (internal quotation marks and citation omitted)

. 2016 T he Court emphasized that the finality of a sentence does not turn on whether it was 1
oral or written, but rather whether the defendant had commenced serving his 2

sentence. Id. ¶ 21 ( “ [A] defendant can reasonably rely on the finality of a sentence

— 3

oral or written

— once the defendant has begu n serving the sentence.” ). 4
Consequently , th is Court concluded that “upon remand to custody for the purpose of 5
serving the originally

- imposed sentence, [the d]efendant began serving his sentence, 6
with a reasonable expectation in its finality, before his resentencings.” Id. ¶ 20. 7

{24 } The State argues that the same principles apply here such that Defendant’s 8
sentence was “imposed” when the sentence was announced in open court and 9
Defendant was remanded into custody. See id. ¶ 28. While those facts a re relevant 10

to whether D efendant had a reasonable expectation that his sentence would not be 11

increased

— a matter not at issue here

— Garcia was clear that the oral sentence 12
remains interlocutory in nature until the judgment and sentence is entered

. Id. ¶ 21. 13

Our courts have long recognized that “ [t] he trial judge ha[s] authority to change the 14
orally

- pronounced sentence prior to entry of [the] written judgment and sentence

. ” 15
State v. Rushing , 1985

- NMCA

- 091, ¶ 6, 103 N.M. 333, 706 P.2d 875

. This is true 16

even where the defendant’s sentence has taken effect. See id. Ultimately, “ i t is the 17

written sentence which contro ls

. ” State v. Kenneman , 1982

- NMCA

- 145, ¶ 9, 98 18
N.M. 794, 653 P.2d 170; see also Rushing , 1985

- NMCA

- 091, ¶ 6 (“ A n oral 19
pronouncement is not a final judgment and is subject to change until reduced to 2017 writing. ” ); Bouldin v. Bruce M. Bernard, Inc. , 1967

- NMSC

- 155, ¶ 3 , 78 N.M. 188, 1
429 P.2d 647 (stating that an oral ruling by a trial judge “is merely evidence of what 2

the court had decided to do

— a decision that the trial court can change at any time 3
before the entry of a final judgment” ). Given this, we are not persuaded that Garcia ’s 4

concern for a def endant ’s reasonable expectation of fin ality governs when a sentence 5
is “imposed” for purposes of Rule 5

- 801. Instead, because the written judgment and 6

sent ence is controlling, it is the appropriate measure for evaluating when a 7
defendant’s time for filing a motion for reduction begins to accrue

. The date on 8
which the judgment and sentence is entered has the additional benefit of providing 9
a date certain for calculating the timeliness of a Rule 5

- 801 motion, rather than the 10

fact

- specific, case

- by

- case analysis required in the double jeopardy context. Cf. State 11
v. Banghart

- Portillo , 2022

- NMSC

- 021 , ¶ 27, 519 P.3d 58 (holding in a 3

- 2 decision 12
that the defendant did not have a reasonable expectation of finality in h er sentence 13

at the time the district court enhanced her sentence ). As with Romero , House , 14
Trujillo , and Conant , we conclude the time fo r filing a Rule 5

- 801 motion did not 15
begin to run until the written ju dgment and sentence wa s entered. 16

{25 } We briefly address the State’s argument that our holding will mean that 17
defendants are precluded from filing 5

- 801 motion s before the written judgment and 18

sentence is filed. This is not the case. As Defendant points out, t he p lain language of 19

the rule states only that a motion may be filed “ within ninety (90) day s after the 2018 sentence is imposed. ” Rule 5

- 801(A) (emphasis added). Defendant construes this to 1

mean that the motion may be filed any time before th at deadline. We agree with this 2
analysis. The rule provides an outer, jurisdictional limit for filing a motion seeking 3
a reduction of the defendant’s sentence; it does not prohibit a defendant from filing 4
such a motion before the written judgment and sentence is filed. In fact , this was the 5
very circumstance presented in Garcia , where the defendant sought discretionary 6
reconsideration of his sentence before the judgment and sentence was entered. 2022

- 7

NMCA

- 008, ¶¶ 16, 22

- 25. The State has provided no authority for its interpretation 8

and we have likewise found no support for it. Consequently, there is nothing to 9

prevent a defendant from filing a 5

- 801 motion before the judgment and sentence is 10

filed. 11

{26 } In conclusion, we hold that “Rule 5

- 801 authorizes the filing of a motion 12
within ninety days of the entry of the judgment and sentence.” Romero , 2014

- 13

NMCA

- 063, ¶ 11. Because Defendant’s motion for reconsid eration of sentence was 14
filed seventy

- eight days after the judgment and sentence was entered in this case, we 15
hold that Defendant’s motion was timely and reverse the district court’s contrary 16

conclusion

. 17

I II

. The Evidence Presented Did Not Have to Be Unavailable at Sentencing 18

{27 } T he district court also ruled that a defendant seeking reconsideration of a 19

sentence must present new information that was not reasonably discoverable at the 2019 time of sentencing. On appeal, Defendant argues that the Rule does not contain this 1
requirement. The State argues that Defendant failed to preserve his argument 2
because he failed to elicit a clear ruling on the issue and proceeded below on the 3
premise that he satisfied this requirement

. But as De fendant notes , we review a 4

district court’s denial of the motion for abuse of discretion, and any mistake of law 5
is, by definition, an abuse of discretion. See State v. Lavone , 2011

- NMCA

- 084, ¶ 5, 6
150 N.M. 473, 261 P.3d 1105 (“A court abuses its discretion if it acts contrary to 7
law.”). 8

{28 } The plain language of Rule 5

- 801 contains no requirement that the 9

information offered in support of the motion be “unavailable” at the time of 10
sentencing

. Rather, under Rule 5

- 801 “it is within the trial court’s discretion whether 11
to modify a valid sentence.” State v. Herbstman , 1999

- NMCA

- 014, ¶ 8, 126 N.M. 12
683, 974 P.2d 177. Neither party has directed us to any authority interpreting Rule 13

5

- 801 as requiring evidence that was otherwise unavailable at the time of sentencing , 14
and in the absence of such a requirement , the district court erred in its interpretation 15
of the rule. On remand, the district court has discretion to consider whether the 16

evidence D efendant offers in support of his motion is new or persuasive and what 17
weight to accord the Defendant’s evidence. The absence of new evidence may 18
impact the persuasive value of a defendant’s motion, but it does not prevent the 19

district court from considering the motion in the first place. 2020 CONCLUSION 1

{29 } We reverse and remand for further proceedings consistent with this opinion

. 2

{30 } IT IS SO ORDERED. 3

__________________________________ 4 MEGAN P. DUFFY , Judge 5

WE CONCUR: 6

_________________________________ __ 7 SHAMMARA H. HENDERSON , Judge 8

_________________________________ __ 9 GERALD E. BACA , Judge 10