State v. Buck

• Court: New Mexico Court of Appeals
• Decided: March 22, 2016
• Docket: 35,273
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 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.

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

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellant,

4 v. No. 35,273

5 CASSANDRA BUCK,

6 Defendant-Appellee.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Christina P. Argyres, District Judge

9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 John Kloss, Assistant Attorney General 12 Albuquerque, NM

13 for Appellant

14 Jorge A. Alvarado, Chief Public Defender 15 Santa Fe, NM

16 for Appellee

17 MEMORANDUM OPINION

18 SUTIN, Judge. 1 {1} Here, the State appealed from the district court’s order dismissing the State’s

2 case with prejudice. Our review of the record indicated that the district court’s order

3 of dismissal with prejudice was based on an adjudication of the merits of the State’s

4 case and effected an acquittal. See State v. Baca, 2015-NMSC-021, ¶ 32, 352 P.3d

5 1151. We issued a notice of proposed summary disposition, proposing to dismiss, on

6 grounds that the Double Jeopardy Clause absolutely bars the State from appealing

7 after an acquittal, even where the acquittal is based on “egregiously erroneous”

8 grounds. State v. Lizzol, 2007-NMSC-024, ¶ 7, 141 N.M. 705, 160 P.3d 886 (internal

9 quotation marks and citation omitted). The State has responded to our notice,

10 indicating that it will not file a memorandum in opposition based on its concurrence

11 that the district court “truly acquitted Defendant, double jeopardy protections preclude

12 retrial, and dismissal of the State’s appeal is required.” [Response] We continue to

13 believe this is the necessary result.

14 {2} For the reasons stated in this Opinion and in our notice, we dismiss the State’s

15 appeal.

16 {3} IT IS SO ORDERED.

17 __________________________________ 18 JONATHAN B. SUTIN, Judge

19 WE CONCUR:

20 ___________________________________

2 1 RODERICK T. KENNEDY, Judge

2 _______________________________ 3 LINDA M. VANZI, Judge