Court of Appeals of New Mexico
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STATE V. ALDACO
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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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.
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
MICHAEL ALDACO,
Defendant-Appellant.
No. 33,811
COURT OF APPEALS OF NEW MEXICO
March 12, 2015
APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY, Jane
Shuler Gray, District Judge
COUNSEL
Hector H. Balderas, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, NM, for Appellee
Jorge A. Alvarado, Chief Public Defender, Santa Fe, NM, for Appellant
JUDGES
JONATHAN B. SUTIN, Judge. WE CONCUR: LINDA M. VANZI, Judge, J. MILES HANISEE, Judge
MEMORANDUM OPINION
SUTIN, Judge.
{1} Defendant appeals from the district court’s judgment and sentence, convicting him of commercial burglary. [RP 112] The judgment and sentence were entered after a non-jury trial and following the district court’s decision to deny Defendant’s motion to strike the commercial burglary charge. [DS]
{2} On the basis of this Court’s opinion in State v. Archuleta, ____-NMCA-___, ___ P.3d ___ (No. 32,794, Oct. 27, 2014), cert. granted, 2015-NMCERT-__, ___ P.3d ___ (No. 35,005, Jan. 26, 2015), we issued a notice of proposed summary disposition, proposing to reverse. The State has responded with an objection to our notice and a request to hold this appeal in abeyance or provide the State with a reasonable opportunity to seek guidance from the New Mexico Supreme Court on all pending appeals controlled by our opinion in Archuleta. [MIO 1-2] We have provided the State with such an opportunity, and the Supreme Court has denied the State a stay or other remedy that would suspend the precedential value of Archuleta. Thus, pursuant to Rule 12-405(C) NMRA, we apply Archuleta. See Rule 12-405(C) (“A petition for a writ of certiorari filed pursuant to Rule 12-502 NMRA or a Supreme Court order granting the petition does not affect the precedential value of an opinion of the Court of Appeals, unless otherwise ordered by the Supreme Court.”).
{3} In its response to our notice, the State simply objects to our proposed disposition without elaboration. [MIO 1] We continue to believe that there are no material factual distinctions to remove this case from the control of our opinion in Archuleta. For the reasons stated in our notice, we reverse Defendant’s conviction for commercial burglary.
{4} IT IS SO ORDERED.
JONATHAN B. SUTIN, Judge
WE CONCUR:
LINDA M. VANZI, Judge
J. MILES HANISEE, Judge