State v. Rankin ( 2013 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. 32,874
5 RUSSELL RANKIN,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Brett R. Loveless, District Judge
9 Gary K. King, Attorney General
10 Pranava Upadrashta, Assistant Attorney General
11 Santa Fe, NM
12 for Appellee
13 Bennett J. Baur, Acting Chief Public Defender
14 Sergio J. Viscoli, Assistant Appellate Defender
15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 BUSTAMANTE, Judge.
1 {1} Rankin appeals his sentence, arguing that the district court erred in the amount
2 of presentence confinement credit it awarded him. In our notice of proposed summary
3 disposition, we proposed to agree that the district court erred. However, we stated
4 that, contrary to Rankin’s arguments, we believed that the district erred by awarding
5 Rankin more credit than he was entitled to, rather than less. We stated that it appeared
6 that the district court properly refused to award credit for the 428-day period during
7 which Rankin was incarcerated prior to sentencing in both a prior case and in this one,
8 but that it erred in awarding credit for the 502-day period during which Rankin was
9 serving a sentence in the prior case and awaiting sentencing in this one. We therefore
10 proposed to reverse and remand for resentencing without the 502-day credit.
11 {2} The State has filed a memorandum in support of this Court’s proposed summary
12 disposition. Rankin has not filed a memorandum in opposition, and the time for doing
13 so has passed. See Rule 12-210(D)(3) NMRA. Accordingly, for the reasons stated in
14 our notice of proposed summary disposition, we reverse and remand for resentencing
15 without the 502-day credit. See Frick v. Veazey, 1993-NMCA-119, ¶ 2, 116 N.M. 246,
16 861 P.2d 287 (“Failure to file a memorandum in opposition constitutes acceptance of
17 the disposition proposed in the calendar notice.”).
18 {3} IT IS SO ORDERED.
2
1
2 MICHAEL D. BUSTAMANTE, Judge
3 WE CONCUR:
4
5 JONATHAN B. SUTIN, Judge
6
7 CYNTHIA A. FRY, Judge
3