State v. Martinez

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 29,648 10 JOSEPH P. MARTINEZ, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 13 LISA SCHULTZ, District Judge 14 Gary K. King, Attorney General 15 Santa Fe, NM 16 for Appellee 17 Hugh W. Dangler, Chief Public Defender 18 Nancy Hewitt, Appellate Defender 19 Santa Fe, NM 20 Steven J. Lucero, Practicing Law Student 21 Albuquerque, NM 22 Scott M. Davidson, Adjunct Professor 23 Albuquerque, NM 1 Trace L. Rabern, Adjunct Professor 2 Santa Fe, NM 3 for Appellant 4 MEMORANDUM OPINION 5 WECHSLER, Judge. 6 Defendant appeals from the revocation of his probation. The notice proposed 7 to affirm. Defendant filed an untimely memorandum in opposition. See Rule 12- 8 210(D)(3) NMRA (setting forth a twenty day period for filing a memorandum in 9 opposition). We request that Defendant’s counsel comply with the appropriate filing 10 period in future cases. As provided in the attached order, we grant the request to 11 allow a practicing law student appearance. We remain unpersuaded by Defendant’s 12 arguments and therefore affirm. 13 Defendant continues to argue that the district court erred in denying him credit 14 against his probation for the period from January 20, 2009 (the date of the probation 15 violation) through March 3, 2009 (the date of Defendant’s arrest on a warrant) 16 because the State failed to prove fugitive status. [DS 4; MIO 2-4] See generally State 17 v. Neal, 2007-NMCA-086, ¶ 30, 142 N.M. 487, 167 P.3d 935 (providing that the 18 probationer is entitled to credit for any time on probation unless the state can show 19 that the probationer was a fugitive from justice because the warrant for the return of 2 1 the probationer could not be served). 2 In support of his argument, Defendant refers [MIO 1] to State v. Franklin, 78 3 N.M. 127, 129, 428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 655, 658-60, 4 712 P.2d 1, 4-6 (Ct. App. 1985). As acknowledged [MIO 3] by Defendant, he was 5 given probation credit for this time period. Specifically, the revocation order in 6 relevant part states, “[t]he Defendant shall further receive credit from August 19, 7 2008, the date the Defendant was placed on probation, through May 7, 2009, the date 8 the Defendant was sentenced on the Petition to Revoke Probation.” [RP 168] For this 9 reason, we hold that the error about which Defendant complains on appeal did not 10 occur. 11 For reasons set forth above, we affirm. 12 IT IS SO ORDERED. 13 _______________________________ 14 JAMES J. WECHSLER, Judge 15 WE CONCUR: 16 _________________________________ 17 CYNTHIA A. FRY, Chief Judge 3 1 _________________________________ 2 MICHAEL D. BUSTAMANTE, Judge 4