State v. Davenport
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,546 5 DORA DAVENPORT, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Kenneth H. Martinez, District Judge 9 Hector H. Balderas, Attorney General 10 Margaret McLean, Assistant Attorney General 11 Santa Fe, NM 12 for Appellee 13 Jorge A. Alvarado, Chief Public Defender 14 Sergio Viscoli, Appellate Public Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 1 HANISEE, Judge. 2 {1} Defendant appeals from the district court’s order denying her motion to dismiss 3 the charge of commercial burglary. Defendant entered a conditional plea reserving for 4 appeal the issues raised in her motion to dismiss. On the basis of this Court’s opinion 5 in State v. Archuleta, ___-NMCA-___, ___ P.3d ___ (No. 32,794, Oct. 27, 2014), 6 cert. granted, 2015-NMCERT-___ (No. 35,005, Jan. 7 26, 2015), we issued a notice of proposed summary disposition, proposing to 8 reverse. The State has responded with an objection to our notice and a request to hold 9 this appeal in abeyance or provide the State with a reasonable opportunity to seek 10 guidance from the New Mexico Supreme Court on all pending appeals controlled by 11 our opinion in Archuleta. [MIO 1-2] We have provided the State with such an 12 opportunity, and the Supreme Court has denied the State a stay or other remedy that 13 would suspend the precedential value of Archuleta. Thus, pursuant to Rule 12-405(C) 14 NMRA, we apply Archuleta. See Rule 12-405(C) (“A petition for a writ of certiorari 15 filed pursuant to Rule 12-502 NMRA or a Supreme Court order granting the petition 16 does not affect the precedential value of an opinion of the Court of Appeals, unless 17 otherwise ordered by the Supreme Court.”). 18 {2} In its response to our notice, the State simply objects to our proposed 19 disposition without elaboration. [MIO 1, 3] We continue to believe that there are no 2 1 material factual distinctions to remove this case from the control of our opinion in 2 Archuleta. For the reasons stated in our notice, we reverse Defendant’s conviction for 3 commercial burglary. 4 {3} IT IS SO ORDERED. 5 6 _________________________________ J. MILES HANISEE, Judge 7 WE CONCUR: 8 _________________________________ 9 MICHAEL D. BUSTAMANTE, Judge 10 _________________________________ 11 JONATHAN B. SUTIN, Judge 3
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