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State v. Montoya - cited by 195 documents
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STATE V. MONTOYA
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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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.
BENJAMIN MONTOYA,
Defendant-Appellant.
No. 33,773
COURT OF APPEALS OF NEW MEXICO
June 23, 2016
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY,
Briana H. Zamora, District Judge
COUNSEL
Hector H. Balderas, Attorney General, Santa Fe, NM, Steven H. Johnston, Assistant Attorney General, Albuquerque, NM, for Appellee
Bennett J. Baur, Chief Public Defender, J. K. Theodosia Johnson, Assistant Appellate Defender, Santa Fe, NM, for Appellant
JUDGES
MICHAEL D. BUSTAMANTE, Judge. WE CONCUR: MICHAEL E. VIGIL, Chief Judge, JONATHAN B. SUTIN, Judge
MEMORANDUM OPINION
BUSTAMANTE, Judge.
{1} This is Defendant’s second appeal in this case. The details of his trial are contained in the Supreme Court’s opinion in his first appeal and need not be repeated. See State v. Montoya, 2013-NMSC-020, 306 P.3d 426. The Supreme Court vacated Defendant’s conviction for felony murder and remanded for entry of an amended sentence reflecting only his conviction for shooting at a motor vehicle. Id. ¶¶ 56, 65. On remand the district court imposed a sentence of fifteen years for a second degree felony resulting in the death of a human being for the offense of shooting at a motor vehicle resulting in great bodily harm (death). The district court suspended two years “on condition of probation and parole.”
{2} Defendant now appeals arguing that sentencing him under NMSA 1978, Section 31-18-15(A)(4) (2007, amended 2016) for his conviction under NMSA 1978, Section 30-3-8(B) (1993) constitutes double jeopardy. This is the same argument we rejected in State v. Franco, 2016-NMCA- , ¶¶ 17-34, P.3d (No. 33,392, June 14, 2016. For the reasons noted in Franco, we reject it here.
{3} Defendant’s sentence is affirmed.
{4} IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
MICHAEL E. VIGIL, Chief Judge
JONATHAN B. SUTIN, Judge