State v. Taylor

• Court: New Mexico Court of Appeals
• Decided: February 28, 2012
• Docket: 31,400
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 31,400

5 JOHN R. TAYLOR,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY 8 Steven L. Bell, District Judge

9 Gary K. King, Attorney General 10 Andrew S. Montgomery, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Jacqueline L. Cooper, Chief Public Defender 14 J.K. Theodosia Johnson, Assistant Appellate Defender 15 Santa Fe, NM

16 for Appellant

17 MEMORANDUM OPINION

18 WECHSLER, Judge. 1 Defendant appeals his convictions for homicide by vehicle (reckless driving),

2 driving while intoxicated (DWI), homicide by vehicle (DWI), knowingly leaving the

3 scene of an accident (death or great bodily harm), and failure to give immediate notice

4 of an accident. [RP 194] In a third notice of proposed summary disposition, we

5 proposed to reverse and to vacate Defendant’s convictions for homicide by vehicle

6 (reckless driving) and DWI because both of those convictions violated Defendant’s

7 right to be free from double jeopardy. We proposed to affirm Defendant’s remaining

8 convictions for the reasons set forth in our first and second notices of proposed

9 summary disposition. The State has filed a memorandum in response to our third

10 notice indicating that it does not oppose our proposal to remand to the district court

11 to vacate the homicide by vehicle (reckless driving) and the DWI convictions.

12 Defendant has filed a memorandum in response to our third notice again

13 requesting that this Court vacate both his homicide by vehicle (reckless driving) and

14 his homicide by vehicle (DWI) convictions and remand for entry of a general verdict

15 of homicide by vehicle without specifying the theory under which he was convicted.

16 [3MIO 1] We decline to do so.

17 As discussed in our third notice, even though homicide by vehicle (DWI) and

18 homicide by vehicle (reckless driving) are both third degree felonies, our Court has

19 previously indicated that the Legislature intended the homicide by vehicle (DWI)

2 1 conviction to stand. See State v. House, 2001-NMCA-011, ¶ 16, 130 N.M. 418, 25

2 P.3d 257 (recognizing that as between homicide (DWI) and homicide (reckless

3 driving) “the Legislature viewed DWI-related violations as the graver or more serious

4 offense [and therefore] the district court appropriately retained the DWI-related

5 convictions”). Thus, we remand so that the district court can vacate Defendant’s

6 conviction for homicide by vehicle (reckless driving). Defendant agrees with our

7 proposal to remand so that the district court can vacate his conviction for DWI.

8 [3MIO 2]

9 Therefore, for the reasons set forth in our third notice of proposed summary

10 disposition, we reverse Defendant’s convictions for homicide by vehicle (reckless

11 driving) and DWI and remand so that those convictions may be vacated. For the

12 reasons set forth in our first, second, and third notices of proposed summary

13 disposition, we affirm the remainder of Defendant’s convictions.

14 IT IS SO ORDERED.

15 ________________________________ 16 JAMES J. WECHSLER, Judge

3 1 WE CONCUR:

2 __________________________________ 3 MICHAEL D. BUSTAMANTE, Judge

4 __________________________________ 5 LINDA M. VANZI, Judge