Opinion
NO. 33,158
03-09-2015
STATE OF NEW MEXICO, Plaintiff-Appellant, v. COTY E. JIMENEZ, Defendant-Appellee.
Hector H, Balderas, Attorney General Margaret E. McLean, Assistant Attorney General Santa Fe, NM for Appellant Jorge A. Alvarado, Chief Public Defender Sergio Viscoli, 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 DONA ANA COUNTY
Darren M. Kugler, District Judge
Hector H, Balderas, Attorney General
Margaret E. McLean, Assistant Attorney General
Santa Fe, NM
for Appellant Jorge A. Alvarado, Chief Public Defender
Sergio Viscoli, Assistant Appellate Defender
Santa Fe, NM
for Appellee
MEMORANDUM OPINION
VIGIL, Judge. {1} The State appeals from the district court's order dismissing the charge of nonresidential burglary brought against Defendant. This Court issued a stay before addressing the merits of the State's appeal, 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 or non-residential burglary. Once the opinion in Archuleta was issued, we relied on that opinion, lifted the stay, and issued a notice of proposed summary disposition, proposing to affirm. [Ct. App. file] {2} The State has filed a response objecting to the 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 regarding 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's request for 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."). {3} In its response to our notice, the State simply objects to our proposed disposition and indicates it is unable to provide any additional facts or legal argument in response to the proposed disposition. [MIO 1, 3] We continue to believe there are no material factual or legal distinctions between this case and our opinion in Archuleta. Therefore, for the reasons stated in our notice of proposed disposition, we affirm the district court's order granting Defendant's motion to dismiss the charge of non-residential burglary. {4} IT IS SO ORDERED.
/s/_________
MICHAEL E. VIGIL, Chief Judge
WE CONCUR:
/s/_________
CYNTHIA A. FRY, Judge
/s/_________
J. MILES HANISEE, Judge