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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO STATE OF NEW MEXICO, 3 Plaintiff-Appellee, vs. No. 31,857 KEITH RUSSELL JUDD, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY James F. Blackmer, District Judge Gary K. King, Attorney General Santa Fe, NM for Appellee Keith Russell Judd Pro se Appellant

14 MEMORANDUM OPINION GARCIA, Judge.

16 Defendant appeals an order denying his motion to vacate an order of dismissal.

17 We proposed to affirm the district court as it lacked jurisdiction to rule on such a motion because Defendant had earlier filed a notice of appeal relating to the amended judgment. Defendant has timely responded. We have considered his arguments and finding them unpersuasive, we affirm.

4 Defendant argues that the district court did not have jurisdiction to enter the original order of dismissal because he had an appeal pending. Therefore, he argues his motion to withdraw the order of dismissal should have been granted. Even if the district court did not have jurisdiction to enter the order of dismissal, that does not give it jurisdiction to enter an order vacating that order of dismissal when an appeal is pending. As there is currently an appeal pending in this matter, the district court did not err in denying Defendant’s motion to vacate the dismissal.

11 For the reasons stated herein and in the notice of proposed disposition, we affirm the denial of Defendant’s motion to vacate dismissal.

13 IT IS SO ORDERED.

15 TIMOTHY L. GARCIA, Judge WE CONCUR:

18 CELIA FOY CASTILLO, Chief Judge

2 MICHAEL E. VIGIL, Judge