Opinion
NO. 32,797
03-09-2015
STATE OF NEW MEXICO, Plaintiff-Appellant, v. ELIZABETH CUFFEE, Defendant-Appellee.
Hector H. Balderas, Attorney General Margaret McLean, Assistant Attorney General Santa Fe, NM for Appellant Jorge A. Alvarado, Chief Public Defender Kimberly Chavez Cook, Assistant Appellate Defender Santa Fe, NM for Appellee
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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Ross Sanchez, District Judge
Hector H. Balderas, Attorney General
Margaret McLean, Assistant Attorney General
Santa Fe, NM
for Appellant Jorge A. Alvarado, Chief Public Defender
Kimberly Chavez Cook, Assistant Appellate Defender
Santa Fe, NM
for Appellee
MEMORANDUM OPINION
WECHSLER, Judge. {1} The State appeals from the district court's order dismissing the indictment against Defendant for the charge of commercial burglary. Originally, we issued a notice of proposed summary disposition, proposing to reverse. Defendant filed a memorandum in opposition to our notice. Thereafter, we issued a stay pending our decision in State v. Archuleta, ___-NMCA-___, ___ P.3d ___ (No. 32,794, Oct. 27, 2014), cert. granted, 2015-NMCERT-___ (No. 35,005, Jan. 26, 2015), the first of many cases raising the same issue relative to the charge of commercial burglary. Relying on our opinion in Archuleta, we lifted the stay and issued a second notice, proposing to affirm. The State has filed a response, objecting to our second notice and requesting that we hold this appeal in abeyance or provide the State with a reasonable opportunity to seek guidance from the New Mexico Supreme Court on all pending appeals controlled by our opinion in Archuleta. [MIO 1-2] We have provided the State with such an opportunity, and the Supreme Court has denied the State a stay or other remedy that would suspend the precedential value of Archuleta. Thus, pursuant to Rule 12-405(C) NMRA, we apply Archuleta. See Rule 12-405(C) ("A petition for a writ of certiorari filed pursuant to Rule 12-502 NMRA or a Supreme Court order granting the petition does not affect the precedential value of an opinion of the Court of Appeals, unless otherwise ordered by the Supreme Court."). {2} In its response to our second notice, the State simply objects to our proposed disposition without elaboration. [MIO 1] We continue to believe that there are no material factual distinctions to remove this case from the control of our opinion in Archuleta. For the reasons stated in our second notice, we affirm the district court's order granting Defendant's motion to dismiss the commercial burglary charge. {3} IT IS SO ORDERED.
/s/_________
JAMES J. WECHSLER, Judge
WE CONCUR:
/s/_________
TIMOTHY L. GARCIA, Judge
/s/_________
J. MILES HANISEE, Judge