Opinion
A-1-CA-41310
10-24-2024
STATE OF NEW MEXICO, Plaintiff-Appellee, v. ORLONDO NAJARRO, Defendant-Appellant.
Raúl Torrez, Attorney General Felicity Strachan, Assistant Solicitor General Santa Fe, NM for Appellee. Bennett J. Baur, Chief Public Defender Caitlin C.M. Smith, Assistant Appellate Defender Santa Fe, NM for Appellant.
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APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY Steven Blankinship, District Court Judge.
Raúl Torrez, Attorney General Felicity Strachan, Assistant Solicitor General Santa Fe, NM for Appellee.
Bennett J. Baur, Chief Public Defender Caitlin C.M. Smith, Assistant Appellate Defender Santa Fe, NM for Appellant.
MEMORANDUM OPINION
SHAMMARA H. HENDERSON, Judge.
{¶1} This matter was submitted to this Court on Defendant's brief in chief pursuant to the Administrative Order for Appeals in Criminal Cases from the Second, Eleventh, and Twelfth Judicial District Courts in In re Pilot Project for Criminal Appeals, No. 2022-002, effective November 1, 2022. Following consideration of the brief in chief, this Court assigned this matter to Track 2 for additional briefing. Now having considered the brief in chief, answer brief, and reply brief, we reverse in part and remand for resentencing.
{¶2} Defendant argues that his convictions for shooting at or from a motor vehicle, contrary to NMSA 1978, Section 30-3-8(B) (1993), and aggravated battery with a deadly weapon, contrary to NMSA 1978, Section 30-3-5(C) (1969), constitute double jeopardy. [BIC 4; 2 RP 261-66] The State responded in its answer brief and agrees with Defendant's analysis, conceding that Defendant's convictions violate double jeopardy. [AB 1, 6-7] While this Court is not bound by such a concession, having reviewed the facts here and in accordance with State v. Montoya, 2013-NMSC-020, ¶¶ 28-54, 306 P.3d 426, and its progeny, we agree with the parties that these two convictions violate double jeopardy. Accordingly, we reverse the sentence imposed and remand for resentencing with instructions to the district court to vacate Defendant's conviction for shooting at a motor vehicle, as the conviction carrying the shorter sentence. Id. ¶¶ 55-56. [BIC 14, AB 7]
{¶3} IT IS SO ORDERED.
WE CONCUR: JACQUELINE R. MEDINA, Judge, ZACHARY A. IVES, Judge.