State v. Jimenez

• Court: New Mexico Court of Appeals
• Decided: March 9, 2015
• Docket: 33,158
• Status: Unpublished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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,158

5 COTY E. JIMENEZ,

6 Defendant-Appellee.

7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 8 Darren M. Kugler, District Judge

9 Hector H, Balderas, Attorney General 10 Margaret E. McLean, Assistant Attorney General 11 Santa Fe, NM

12 for Appellant

13 Jorge A. Alvarado, Chief Public Defender 14 Sergio Viscoli, Assistant Appellate Defender 15 Santa Fe, NM

16 for Appellee

17 MEMORANDUM OPINION

18 VIGIL, Judge. 1 {1} The State appeals from the district court’s order dismissing the charge of non-

2 residential burglary brought against Defendant. This Court issued a stay before

3 addressing the merits of the State’s appeal, pending our decision in State v. Archuleta,

4 ___-NMCA-___, ___ P.3d ___ (No. 32,794, Oct. 27, 2014), cert. granted,

5 2015-NMCERT-___ (No. 35,005, Jan. 26, 2015), the first

6 of many cases raising the same issue relative to the charge of commercial or non-

7 residential burglary. Once the opinion in Archuleta was issued, we relied on that

8 opinion, lifted the stay, and issued a notice of proposed summary disposition,

9 proposing to affirm. [Ct. App. file]

10 {2} The State has filed a response objecting to the notice and requesting that we

11 hold this appeal in abeyance or provide the State with a reasonable opportunity to seek

12 guidance from the New Mexico Supreme Court regarding all pending appeals

13 controlled by our opinion in Archuleta. [MIO 1-2] We have provided the State with

14 such an opportunity, and the Supreme Court has denied the State’s request for a stay

15 or other remedy that would suspend the precedential value of Archuleta. Thus,

16 pursuant to Rule 12-405(C) NMRA, we apply Archuleta. See Rule 12-405(C) (“A

17 petition for a writ of certiorari filed pursuant to Rule 12-502 NMRA or a Supreme

18 Court order granting the petition does not affect the precedential value of an opinion

19 of the Court of Appeals, unless otherwise ordered by the Supreme Court.”).

2 1 {3} In its response to our notice, the State simply objects to our proposed

2 disposition and indicates it is unable to provide any additional facts or legal argument

3 in response to the proposed disposition. [MIO 1, 3] We continue to believe there are

4 no material factual or legal distinctions between this case and our opinion in

5 Archuleta. Therefore, for the reasons stated in our notice of proposed disposition, we

6 affirm the district court’s order granting Defendant’s motion to dismiss the charge of

7 non-residential burglary.

8 {4} IT IS SO ORDERED.

9 __________________________________ 10 MICHAEL E. VIGIL, Chief Judge

11 WE CONCUR:

12 ___________________________________ 13 CYNTHIA A. FRY, Judge

14 ___________________________________ 15 J. MILES HANISEE, Judge