1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, v. NO. 30,746 PATRICK MAZZEI, 11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Robert M. Schwartz, District Judge Gary K. King, Attorney General Santa Fe, NM for Appellee Fuentes & Associates, P.C.

18 Robert R. Fuentes Rio Rancho, NM for Appellant 21 MEMORANDUM OPINION VIGIL, Judge.

23 Defendant appeals from a conditional plea and disposition agreement in which he pleaded guilty to one count of aggravated driving under the influence (Fourth or Subsequent Offense). [RP 115] This Court issued a calendar notice proposing to dismiss Defendant’s appeal for lack of a final order. Specifically, we proposed to conclude that because sentencing was left pending while the Defendant’s case was referred to drug court, and because no final judgment and sentence was entered, Defendant’s notice of appeal was premature. See State v. Garcia, 99 N.M. 466, 471, 659 P.2d 918, 923 (Ct. App. 1983) (holding that in a criminal case the final judgment is the judgment and sentence or an order dismissing all charges against the defendant).

8 Defendant has filed a response to this Court’s notice of proposed summary disposition. In his response, Defendant concurs with this Court’s proposed disposition of dismissal. We therefore dismiss Defendant’s appeal as premature. Defendant may re-file his appeal once a final judgment and sentence has been entered.

12 IT IS SO ORDERED.

13 _______________________________ 14 MICHAEL E. VIGIL, Judge WE CONCUR:

16 _________________________________ MICHAEL D. BUSTAMANTE, Judge

18 _________________________________ RODERICK T. KENNEDY, Judge