State v. Campbell
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 33,693 5 LORIE ESTELLE CAMPBELL 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF DON˜A ANA COUNTY 8 Darren M. Kugler, 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 Defender 15 Santa Fe, NM 16 for Appellant 17 18 FRY, Judge. MEMORANDUM OPINION 1 {1} The State appeals from the district court’s order dismissing the indictment 2 against Defendant for the charge of commercial burglary. This Court issued a stay 3 before addressing the merits of the State’s appeal, pending our decision in State v. 4 Archuleta, _____-NMCA-___, ___ P.3d ___ (No. 32,794, Oct. 27, 2014), cert. 5 granted, 2015-NMCERT-___ (No. 35,005, Jan. 26, 6 2015), the first of many cases raising the same issue relative to the charge of 7 commercial burglary. Relying on our opinion in Archuleta, we lifted the stay and 8 issued a notice of proposed summary disposition, proposing to affirm on December 9 23, 2014. [Ct. App. file] The State has filed a response, objecting to our notice and 10 requesting that we hold this appeal in abeyance or provide the State with a reasonable 11 opportunity to seek guidance from the New Mexico Supreme Court on all pending 12 appeals controlled by our opinion in Archuleta. [MIO 1-2] We have provided the State 13 with such an opportunity, and the Supreme Court has denied the State a stay or other 14 remedy that would suspend the precedential value of Archuleta. Thus, pursuant to 15 Rule 12-405(C) NMRA, we apply Archuleta. See Rule 12-405(C) (“A petition for a 16 writ of certiorari filed pursuant to Rule 12-502 NMRA or a Supreme Court order 17 granting the petition does not affect the precedential value of an opinion of the Court 18 of Appeals, unless otherwise ordered by the Supreme Court.”). 2 1 {2} In its response to our notice, the State simply objects to our proposed 2 disposition without elaboration. [MIO 1] We continue to believe that there are no 3 material factual distinctions to remove this case from the control of our opinion in 4 Archuleta. For the reasons stated in our notice, we affirm the district court’s order 5 granting Defendant’s motion to dismiss the commercial burglary charge. 6 7 8 9 {3} IT IS SO ORDERED. __________________________________ CYNTHIA A. FRY, Judge 10 WE CONCUR: 11 __________________________ 12 JONATHAN B. SUTIN, Judge 13 __________________________ 14 MICHAEL D. BUSTAMANTE, Judge 3
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