This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8 v. No. 30,297 9 WILLIAM BIRKLEY, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Albert “Pat” S. Murdoch, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 William Birkley 17 Albuquerque, NM 18 Pro Se Appellant 19 MEMORANDUM OPINION 20 SUTIN, Judge. 21 Defendant appeals from the district c ourt’s dismissal of his appeal from 22 metropolitan court as untimely. This Court issued a calendar notice proposing to 232 dismiss for lack of a final order. De fendant has filed a memorandum in opposition to 1 this Court’s notice, which we have duly c onsidered. Unpersuaded, we dismiss this 2 appeal. 3 On February 20, 2007, Appe llant was cited for two moving violations arising 4 from an automobile accident. [DS 3] On April 2, 2007, De fendant was found guilty 5 of one count of overtaking on the left inviolation of NMSA 1978, Section 66-7-312 6 (1978). [RP 29] On appeal, Defendant asserts that he wa s not informed of his right 7 to appeal the metropolitan court’s determin ation and that when he later discovered, 8 based on his own research, that he had th e right to appeal th e metropolitan court’s 9 judgment, he filed a notice of appeal in N ovember 2009. [DS 4; RP 32] The district 10 court dismissed Defendant’s appeal as untimely. [RP 37] Defendant filed a motion 11 for reconsideration. [RP 38] The district court has not ruled on that motion. 12 As this Court pointed out in its notice of proposed disposition, a criminal 13 defendant may file an appeal from criminal proceedings in district court to this Court 14 if the appeal is: (1) “within thirty days from the entry of any final judgment[,]” 15 (2) “within ten days after entry of anorder denying relief on a petition to review 16 conditions of release . . . [,]” or (3) “an interlocutory order or decision in which the 17 district court, in its discretion, makes a fi nding in the order or decision that the order 18 or decision involves a controlling question of law as to which there is substantial 193 ground for difference of opinion and that an immediate appeal from such order or 1 decision may materially advance the ultim ate termination of the litigation.” NMSA 2 1978, § 39-3-3(A) (1972). When a post-judgment motion is filed that could alter, 3 amend, or moot the judgment, the judgmen t is no longer final for purposes of appeal, 4 and the time for filing a notice of appeal begins to run from the filing of the order 5 disposing of the post-judgment motion. See Grygorwicz v. Trujillo , 2009-NMSC-009, 6 ¶ 8, 145 N.M. 650, 203 P.3d 865; Dickens v. Laurel Healthcare, LLC, 2009-NMCA7 122, ¶ 6, 147 N.M. 303, 222 P.3d 675. We therefore proposed to conclude that 8 Defendant’s act of requesting reconsideration of the district court’s order dismissing 9 his appeal, rendered the underlying dismissal of Defendant’s appeal a non-final order, 10 and we proposed to dismiss Defendant’s appeal as premature. 11 In his memorandum in opposition, Defendant challenges our Supreme Court’s 12 recent decisions on finality and their impact on the deemed-denied provision of 13 NMSA 1978, Section 39-1-1 (1917). Specifi cally, Defendant contends that the 14 Supreme Court’s decision to supersede the deemed-denied provision of Section 39-1-1 15 violates separation of powers [MIO 3-4], permits our courts to arbitrarily frustrate 16 appellate review [MIO 4-5], violates dueprocess by denying defendants the right of 17 access to the courts [MIO 6-7] , and denies equal protecti on [MIO 7-9]. To the extent 18 Defendant challenges our S upreme Court’s rulings in Albuquerque Redi-Mix, Inc. v. 194 Scottsdale Ins. Co. , 2007-NMSC-051, ¶ 15, 142 N.M. 527, 168 P.3d 99, and 1 Grygorwicz , 2009-NMSC-009, ¶ 8, this Court is bound by Supreme Court precedent. 2 See State ex rel. Martinez v. City of Las Vegas , 2004-NMSC-009, ¶¶ 20-22, 135 N.M. 3 375, 89 P.3d 47. We therefore apply Albuquerque Redi-Mix and Gyrgorwiczwhich, 4 as we explained in this Court’s notice of proposed disposition, results in dismissal of 5 Defendant’s appeal for lack of finality. Further, to the extent Defendant challenges 6 the effectiveness of his counsel’s representation in metropolitan court, asserts 7 prosecutorial misconduct, and contests th e factual foundation for his conviction on 8 appeal [MIO 9-15], we do not address these issues because they are not properly 9 before us at this time. 10 Finally, Defendant asks that this Court not dismiss his appeal, but return 11 jurisdiction to the district court for the limited purpose of permitting it to rule on his 12 post-trial motion. [MIO 8] We deny Defendant’s request, as we conclude that 13 dismissal is appropriate in this case. De fendant’s post-trial motion asked the district 14 court to reconsider whether dismissal of his appeal from metropolitan court was 15 untimely. Defendant is appealing from the di strict court’s order of dismissal. Should 16 the district court reconsider its ruling and determine that dismissal was inappropriate, 17 there will no longer be a basis for Defendant ’s present appeal. Because the district 18 court’s resolution of the issue presented in Defendant’s post-trial motion may obviate 195 the necessity of the current appeal, we conclude that the appropriate remedy is 1 dismissal. We therefore dismiss Defendant’s appeal and remand the matter to the 2 district court with instructions that th e district court resolve Defendant’s pending 3 motion. 4 For the reasons stated in this opinion and in our notice of proposed disposition, 5 we dismiss Defendant’s appeal for lack of a final order. 6 IT IS SO ORDERED. 7

__________________________________ 8 JONATHAN B. SUTIN, Judge 9 WE CONCUR: 10

_________________________________ 11 JAMES J. WECHSLER, Judge 12

_________________________________ 13 CELIA FOY CASTILLO, Judge 14