State v. Rankin

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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-Appellee,

4 v. No. 32,874

5 RUSSELL RANKIN,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Brett R. Loveless, District Judge

9 Gary K. King, Attorney General 10 Pranava Upadrashta, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Acting Chief Public Defender 14 Sergio J. Viscoli, Assistant Appellate Defender 15 Santa Fe, NM

16 for Appellant

17 MEMORANDUM OPINION

18 BUSTAMANTE, Judge. 1 {1} Rankin appeals his sentence, arguing that the district court erred in the amount

2 of presentence confinement credit it awarded him. In our notice of proposed summary

3 disposition, we proposed to agree that the district court erred. However, we stated

4 that, contrary to Rankin’s arguments, we believed that the district erred by awarding

5 Rankin more credit than he was entitled to, rather than less. We stated that it appeared

6 that the district court properly refused to award credit for the 428-day period during

7 which Rankin was incarcerated prior to sentencing in both a prior case and in this one,

8 but that it erred in awarding credit for the 502-day period during which Rankin was

9 serving a sentence in the prior case and awaiting sentencing in this one. We therefore

10 proposed to reverse and remand for resentencing without the 502-day credit.

11 {2} The State has filed a memorandum in support of this Court’s proposed summary

12 disposition. Rankin has not filed a memorandum in opposition, and the time for doing

13 so has passed. See Rule 12-210(D)(3) NMRA. Accordingly, for the reasons stated in

14 our notice of proposed summary disposition, we reverse and remand for resentencing

15 without the 502-day credit. See Frick v. Veazey, 1993-NMCA-119, ¶ 2, 116 N.M. 246,

16 861 P.2d 287 (“Failure to file a memorandum in opposition constitutes acceptance of

17 the disposition proposed in the calendar notice.”).

18 {3} IT IS SO ORDERED.

2 1 2 MICHAEL D. BUSTAMANTE, Judge

3 WE CONCUR:

4 5 JONATHAN B. SUTIN, Judge

6 7 CYNTHIA A. FRY, Judge