State v. Herrera ( 2013 )

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. 32,140 5 FRANCISCO R. HERRERA, 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 Yvonne M. Chicoine, Assistant Attorney General 11 Santa Fe, NM 12 for Appellee 13 Bennett J. Baur, Acting Chief Public Defender 14 Allison H. Jaramillo, Assistant Public Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 FRY, Judge. 1 {1} Summary affirmance was proposed for the reasons stated in the calendar notice. 2 No memorandum opposing summary affirmance has been filed, and the time for doing 3 so has expired. 4 {2} Defendant has filed a response to the second calendar notice, stating that he will 5 not be filing a memorandum in opposition to the second calendar notice. The State 6 has also filed a response, stating that it will not be filing a memorandum in opposition 7 to the second calendar notice. Therefore, for the reasons set forth in the first and 8 second calendar notices, we affirm on Issues 1-4 and we reverse on Issues 5 and 6. 9 10 {3} Defendant admits that he was sentenced correctly because the parties agreed 11 that this was Defendant’s fourth DWI, and therefore a felony, as is aggravated 12 DWI(.16 or above). [Def. MIO 10, RP 153] In accordance with the second calendar 13 notice, however, we remand this case to the district court to correct the judgment and 14 sentence to reflect Defendant’s conviction for simple DWI (fourth offense) rather than 15 aggravated DWI (.16 or above), pursuant to the jury’s verdict forms. [RP 135, 136] 16 {4} IT IS SO ORDERED. 17 18 CYNTHIA A. FRY, Judge 2 1 WE CONCUR: 2 3 JONATHAN B. SUTIN, Judge 4 5 LINDA M. VANZI, Judge 3