State v. Cuffee
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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-Appellant, 4 v. NO. 32,797 5 ELIZABETH CUFFEE, 6 Defendant-Appellee. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Ross Sanchez, District Judge 9 Hector H. Balderas, Attorney General 10 Margaret McLean, Assistant Attorney General 11 Santa Fe, NM 12 for Appellant 13 Jorge A. Alvarado, Chief Public Defender 14 Kimberly Chavez Cook, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellee 17 MEMORANDUM OPINION 1 WECHSLER, Judge. 2 {1} The State appeals from the district court’s order dismissing the indictment 3 against Defendant for the charge of commercial burglary. Originally, we issued a 4 notice of proposed summary disposition, proposing to reverse. Defendant filed a 5 memorandum in opposition to our notice. Thereafter, we issued a stay pending our 6 decision in State v. Archuleta, ___-NMCA-___, ___ P.3d ___ (No. 32,794, Oct. 27, 7 2014), cert. granted, 2015-NMCERT-___ (No. 35,005, 8 Jan. 26, 2015), the first of many cases raising the same issue relative to the 9 charge of commercial burglary. Relying on our opinion in Archuleta, we lifted the stay 10 and issued a second notice, proposing to affirm. The State has filed a response, 11 objecting to our second notice and requesting that we hold this appeal in abeyance or 12 provide the State with a reasonable opportunity to seek guidance from the New 13 Mexico Supreme Court on all pending appeals controlled by our opinion in Archuleta. 14 [MIO 1-2] We have provided the State with such an opportunity, and the Supreme 15 Court has denied the State a stay or other remedy that would suspend the precedential 16 value of Archuleta. Thus, pursuant to Rule 12-405(C) NMRA, we apply Archuleta. 17 See Rule 12-405(C) (“A petition for a writ of certiorari filed pursuant to Rule 12-502 18 NMRA or a Supreme Court order granting the petition does not affect the precedential 19 value of an opinion of the Court of Appeals, unless otherwise ordered by the Supreme 2 1 Court.”). 2 {2} In its response to our second notice, the State simply objects to our proposed 3 disposition without elaboration. [MIO 1] We continue to believe that there are no 4 material factual distinctions to remove this case from the control of our opinion in 5 Archuleta. For the reasons stated in our second notice, we affirm the district court’s 6 order granting Defendant’s motion to dismiss the commercial burglary charge. 7 {3} IT IS SO ORDERED. 8 9 ________________________________ JAMES J. WECHSLER, Judge 10 WE CONCUR: 11 ________________________________ 12 TIMOTHY L. GARCIA, Judge 13 ________________________________ 14 J. MILES HANISEE, Judge 3
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