Opinion
No. 32,140
06-11-2013
STATE OF NEW MEXICO, Plaintiff-Appellee, v. FRANCISCO R. HERRERA, Defendant-Appellant.
Gary K. King, Attorney General Yvonne M. Chicoine, Assistant Attorney General Santa Fe, NM for Appellee Bennett J. Baur, Acting Chief Public Defender Allison H. Jaramillo, Assistant Public Defender Santa Fe, NM for Appellant
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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 CHAVES COUNTY
Steven L. Bell, District Judge
Gary K. King, Attorney General
Yvonne M. Chicoine, Assistant Attorney General
Santa Fe, NM
for Appellee Bennett J. Baur, Acting Chief Public Defender
Allison H. Jaramillo, Assistant Public Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
FRY, Judge.
{1} Summary affirmance was proposed for the reasons stated in the calendar notice. No memorandum opposing summary affirmance has been filed, and the time for doing so has expired. {2} Defendant has filed a response to the second calendar notice, stating that he will not be filing a memorandum in opposition to the second calendar notice. The State has also filed a response, stating that it will not be filing a memorandum in opposition to the second calendar notice. Therefore, for the reasons set forth in the first and second calendar notices, we affirm on Issues 1-4 and we reverse on Issues 5 and 6. {3} Defendant admits that he was sentenced correctly because the parties agreed that this was Defendant's fourth DWI, and therefore a felony, as is aggravated DWI(.16 or above). [Def. MIO 10, RP 153] In accordance with the second calendar notice, however, we remand this case to the district court to correct the judgment and sentence to reflect Defendant's conviction for simple DWI (fourth offense) rather than aggravated DWI (.16 or above), pursuant to the jury's verdict forms. [RP 135, 136] {4} IT IS SO ORDERED.
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CYNTHIA A. FRY , Judge
WE CONCUR:
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JONATHAN B. SUTIN, Judge
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LINDA M. VANZI, Judge