State v. Phillips, 78 N.M. 405, 432 P.2d 116 (1967)

Sept. 15, 1967 · Court of Appeals of New Mexico · No. 37

78 N.M. 405, 432 P.2d 116

432 P.2d 116

STATE of New Mexico, Plaintiff-Appellant, v. Gary Grant PHILLIPS, Defendant-Appellee.

No. 37.

Court of Appeals of New Mexico.

Sept. 15, 1967.

Boston E. Witt, Atty. Gen., Donald W. Miller, Asst. Atty. Gen., Santa Fe, for appellant.

Tom W. Neal, Hobbs, for appellee.

OPINION

WOOD, Judge.

The trial court quashed the criminal information. The State appeals under §21-2-1(5) (4), N.M.S.A.1953. Since the appeal must be dismissed, we do not reach the merits.

On August 5th, after hearing argument, the trial court announced that the information would be quashed.

On August 18th the State filed a notice of appeal. The notice states that an appeal is taken “from the order quashing Information filed in this cause on August 18.”

There is no order of August 18th which quashes the information. Such an order was filed on August 26th.

Under § 21-2-1(5) (5), N.M.S.A.1953, the notice of appeal “shall designate the judgment, order or part thereof appealed from.” The State’s notice of appeal is from a non-existent order; the notice is a nullity. The notice of appeal cannot be taken as an appeal from the order of August 26th since this order was entered eight days after the notice of appeal was filed. Bouldin v. Bruce M. Bernard, Inc., 78 N.M. 188, 429 P.2d 647 (1967).

Since no appeal has been taken from the order quashing the information, this appeal is dismissed.

It is so ordered.

PIENSLEY, Jr., C. J., and SPIESS, J., concur.