State v. Reed

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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 32,491 5 RUSSELL REED, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 8 J. Richard Brown, District Judge 9 Gary K. King, Attorney General 10 Margaret McLean, Assistant Attorney General 11 Santa Fe, NM 12 for Appellee 13 Bennett J. Baur, Acting Chief Public Defender 14 Nina Lalevic, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 18 VANZI, Judge. MEMORANDUM OPINION 1 {1} Defendant appeals from an amended judgment and sentence, by which he was 2 convicted for two counts of aggravated battery (deadly weapon and great bodily 3 harm). We issued a notice of proposed summary disposition, proposing to reverse and 4 remand on grounds that the district court lacked jurisdiction to enter the amended 5 judgment and sentence. The State has filed a responsive memorandum. After due 6 consideration, we reverse and remand for further proceedings. 7 {2} As described at greater length in the notice of proposed summary disposition, 8 the pendency of a prior appeal with this Court deprived the district court of 9 jurisdiction to amend the judgment and sentence. See State v. Aragon, 109 N.M. 632, 10 638-39, 788 P.2d 932, 938-39 (Ct. App. 1990) (noting that the district court lacks 11 jurisdiction to amend a judgment and sentence during the pendency of an appeal and 12 does not regain jurisdiction until mandate has issued); State v. Aaron, 103 N.M. 138, 13 140, 703 P.2d 915, 917 (Ct. App. 1985) (observing that the trial court lacked 14 jurisdiction to rule on a motion to correct sentence that was filed during the pendency 15 of a prior appeal). In its response, the State indicates that it agrees with our analysis 16 relative to this jurisdictional problem. [MIO 1-2] We therefore conclude that reversal 17 is necessary. 18 {3} In our notice of proposed summary disposition, we also briefly addressed two 19 issues that Defendant raised in his docketing statement because those issues seem 20 likely to recur on remand. See, e.g., State v. Martinez, 2002-NMSC-008, ¶ 17, 132 2 1 N.M. 32, 43 P.3d 1042 (addressing a sentencing issue notwithstanding the fact that it 2 was not strictly necessary to do so because the issue seemed likely to recur following 3 remand); State v. Soto, 2001-NMCA-098, ¶ 11, 131 N.M. 299, 35 P.3d 304 4 (proceeding to address a double jeopardy issue after vacating on other grounds 5 because the issue seemed likely to arise again on remand). For reasons previously 6 described, we expressed concern that substitution of a conviction for aggravated 7 battery for the conviction for aggravated battery on a household member would 8 violate applicable precedent. See State v. Villa, 2004-NMSC-031, ¶¶ 8, 12-18, 136 9 N.M. 367, 98 P.3d 1017. We also observed that the entry of multiple convictions for 10 aggravated battery (deadly weapon and serious bodily harm) would appear to violate 11 double jeopardy. See, e.g., State v. Cooper, 1997-NMSC-058, ¶ 53, 124 N.M. 277, 12 949 P.2d 660. 13 {4} In its memorandum in opposition the State indicates that it concurs with our 14 analysis relative to the double jeopardy issue [MIO 7] but submits that Villa can and 15 should be limited or distinguished. [MIO 3-6] Although we have serious reservations 16 about the State s position, we believe it is appropriate to permit the parties to present 17 their arguments on remand and to allow the district court to evaluate the matter and 18 render its considered judgment. 3 1 {5} Accordingly, for the reasons stated above and in the notice of proposed 2 summary disposition, we reverse and remand for further proceedings consistent herewith. 3 {6} IT IS SO ORDERED. 4 5 __________________________________ LINDA M. VANZI, Judge 6 WE CONCUR: 7 _________________________________ 8 MICHAEL E. VIGIL, Judge 9 _________________________________ 10 J. MILES HANISEE, Judge 4

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