State v. Roberts ( 2011 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 31,109 10 CHANCE BENTRY ROBERTS, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 13 Mike Murphy, District Court Judge 14 Gary K. King, Attorney General 15 Andrew S. Montgomery, Assistant Attorney General 16 Santa Fe, NM 17 for Appellee 18 Jacqueline Cooper, Acting Chief Public Defender 19 Will O’Connell, Assistant Appellate Defender 20 Santa Fe, NM 21 Robert E. Tangora LLC 22 Robert E. Tangora 23 Santa Fe, NM 24 for Appellant 1 MEMORANDUM OPINION 2 VIGIL, Judge. 3 Defendant appeals the district court’s ex parte order of unsatisfactory discharge 4 from probation. In our notice, we proposed to reverse and remand for issuance of an 5 order of satisfactory discharge. In response, the State and Defendant have filed a joint 6 motion to adopt the proposed disposition with the modification that instead of remand 7 for issuance of an order of satisfactory discharge, the remand should be for dismissal 8 of the charge. 9 We agree that the appropriate remedy in this case is dismissal pursuant to 10 NMSA 1978, Section 31-20-9 (1963). This section applies to deferred sentences and 11 their expiration. Thus, “[w]henever the period of deferment expires, the defendant is 12 relieved of any obligations imposed on him by the order of the court and has satisfied 13 his criminal liability for the crime, [and] the court shall enter a dismissal of the 14 criminal charges.” 15 Here, based on the reasoning in the calendar notice, the period of deferment 16 expired without entry of an order imposing sentence. Therefore, Defendant is entitled 2 1 to have the charges against him dismissed. This case is reversed and remanded for 2 entry of an order of dismissal of the charges. 3 IT IS SO ORDERED. 4 _______________________________ 5 MICHAEL E. VIGIL, Judge 6 WE CONCUR: 7 _________________________________ 8 JAMES J. WECHSLER, Judge 9 _________________________________ 10 TIMOTHY L. GARCIA, Judge 3