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Positive treatment
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Treatment trajectory · 1993 → 2026 · click a year to view as-of
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2009
2026
Top citers, strongest first. 50 distinct citers.
discussed
Cited as authority (rule)
Bishop v. Don Chalmers Ford
See Hennessy v. Duryea, 1998-NMCA-036 , ¶ 24, 124 N.M. 754 , 955 14 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases, the 15 burden is on the party opposing the proposed disposition to clearly point out errors in 16 fact or law.”); State v. Johnson, 107 N.M. 356, 358 , 758 P.2d 306, 308 (Ct. App. 17 1988) (providing that, when a case is decided on the summary calendar, an issue is 18 deemed abandoned where a party fails to respond to the proposed disposition of the 19 issue). 2 1 Instead, in his memorandum in opposition, Worker relies on Delgado v. Phelps 2 Dodge…
discussed
Cited as authority (rule)
Olivas v. Pekarcik
Because there is no final order underlying the award of attorney fees, we 17 proposed to conclude that this is not a situation in which the award of attorney fees 18 is separately appealable. 3 1 In response to our notice, Respondent pursues only his challenge to the district 2 court’s award of attorney fees. [MIO 1-2] Thus, he has abandoned all other issues. 3 See State v. Johnson, 107 N.M. 356, 358 , 758 P.2d 306, 308 (Ct. App. 1988) (stating 4 that when a case is decided on the summary calendar, an issue is deemed abandoned 5 where a party fails to respond to the proposed disposition of t…
discussed
Cited as authority (rule)
Kupcak v. Mosaic Potash Carlsbad
See Hennessy v. Duryea, 1998-NMCA-036 , ¶ 24, 124 N.M. 754 , 955 P.2d 683 2 (“Our courts have repeatedly held that, in summary calendar cases, the burden is on 3 the party opposing the proposed disposition to clearly point out errors in fact or 4 law.”); State v. Johnson, 107 N.M. 356, 358 , 758 P.2d 306, 308 (Ct. App. 1988) 5 (stating that an issue is deemed abandoned when a party fails to respond to this 6 Court’s notice of proposed summary disposition of that issue). 7 Therefore, for the reasons stated in this opinion and in our notice of proposed 8 summary disposition, we affirm. 9 …
cited
Cited as authority (rule)
State v. Garcia
State v. Johnson, 107 N.M. 356, 358 , 758 P.2d 306, 308 (Ct. 5 App. 1988 ).
discussed
Cited as authority (rule)
Diepholz v. Park Plaza
Dep’t of Health v. Ulibarri, 115 N.M. 413, 414-15 , 852 P.2d 686 , 687-88 5 (Ct. App. 1993) (recognizing that the party opposing a proposed disposition in a 6 notice must point out error in fact or law in a memorandum in opposition); State v. 7 Johnson, 107 N.M. 356, 358, 758 P.2d 306, 308 (Ct. App. 1988) (stating that when 8 a case is decided on the summary calendar, an issue is deemed abandoned where a 9 party fails to respond to the proposed disposition of the issue). 10 Plaintiff also argued that the district court improperly relied on his failure to 11 comply with the amelioration effor…
discussed
Cited as authority (rule)
State v. Nelson
Accordingly, we find that Defendant has abandoned those issues. 14 1 See State v. Johnson, 107 N.M. 356, 358 , 758 P.2d 306, 308 (Ct. App. 1988) (stating 2 that when a case is decided on the summary calendar, an issue is deemed abandoned 3 where a party fails to respond to the proposed disposition of the issue). 4 Therefore, for the reasons stated in this opinion and in our notice of proposed 5 summary disposition, we affirm. 6 IT IS SO ORDERED. 7 8 CYNTHIA A. FRY, Chief Judge 9 WE CONCUR: 10 11 MICHAEL E.
discussed
Cited as authority (rule)
State v. Tesch
State v. Johnson, 107 N.M. 356, 358 , 758 P.2d 306, 308 (Ct. App. 2 1988) (stating that when a case is decided on the summary calendar, an issue is 3 deemed abandoned where a party fails to respond to the proposed disposition of the 4 issue). 5 Therefore, for the reasons stated in this opinion and the notice of proposed 6 summary disposition, we affirm. 7 IT IS SO ORDERED. 8 9 MICHAEL D.
discussed
Cited as authority (rule)
State v. Harvey
State v. Johnson, 107 N.M. 356 , 17 358, 758 P.2d 306, 308 (Ct. App. 1988) (stating that when a case is decided on the 18 summary calendar, an issue is deemed abandoned where a party fails to respond to 19 the proposed disposition of the issue).
cited
Cited as authority (rule)
State v. Morgan
State v. Johnson, 107 N.M. 356 , 10 358, 758 P.2d 306, 308 (Ct. App. 1988).
discussed
Cited as authority (rule)
State v. Gallegos
Ball, 104 N.M. at 183 , 718 P.2d at 693 ; State v. Johnson, 107 N.M. 356, 357 , 758 P.2d 306, 307 (Ct.App.1988). {10} Defendant opposed the State’s motion to dismiss by arguing that he did not knowingly, voluntarily, and intelligently give his plea.
discussed
Cited as authority (rule)
State v. Jonathan B.
(2×)
State v. Johnson, 107 N.M. 356, 357 , 758 P.2d 306, 307 (Ct.App.1988) (“We do not doubt that the requirement that a plea agreement be reduced to writing provides evidence that a guilty plea is voluntary and knowingly given.
cited
Cited as authority (rule)
Taylor v. Van Winkle's Iga Farmer's Market
State v. Johnson, 107 N.M. 356, 358 , 758 P.2d 306, 308 (Ct.App.), cert. denied, 107 N.M. 151 , 754 P.2d 528 (1988). 6.
discussed
Cited "see"
State v. Martinez
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (observing that where a memorandum in opposition does not respond to our proposed summary disposition with respect to an issue, that issue is deemed abandoned).
discussed
Cited "see"
State v. Hodges
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (explaining that when a case is decided on the summary calendar, an issue is deemed abandoned when a party fails to respond to the proposed disposition of that issue). {3} Issue 2: Defendant continues to claim that the district court erred in excluding a letter that Defendant wrote to his wife. [MIO 2] In this letter, quoted in the docketing statement, he appears to show remorse for having earlier solicited his wife to commit bribery of a witness. [DS 3-4] Our calendar notice proposed to hold that the letter constituted he…
discussed
Cited "see"
State v. Gonzalez
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (explaining that when a case is decided on the summary calendar, an issue is deemed abandoned when a party fails to respond to the proposed disposition of that issue).
discussed
Cited "see"
State v. Rodriguez-Monge
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (explaining that when a case is decided on the summary calendar, an issue is deemed abandoned when a party fails to respond to the proposed disposition of that issue).
discussed
Cited "see"
Lifestyle at Renaissance v. Brown
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (observing that where a memorandum in opposition does not respond to our proposed summary disposition with respect to an issue, that issue is deemed abandoned). {3} In Defendant’s memorandum in opposition, she continues to argue that the metropolitan court should have dismissed the case underlying this appeal because of a prior proceeding, which was also brought by Plaintiff, had previously been dismissed with prejudice. [MIO 2] We proposed to affirm on the grounds that the basis for the prior proceeding and the current …
discussed
Cited "see"
Crumpler v. Lea Reg'l Hosp.
(2×)
See State v. Johnson, 1988-NMCA- 029, ¶ 8, 107 N.M. 356 , 758 P.2d 306 . {4} Finally, we reject Plaintiff’s continued reliance on Greiser v. Brown, 1984-NMCA- 101, 102 N.M. 11 , 690 P.2d 454 , in asserting that her own forgetfulness regarding the operation of the doors was a question of fact for the jury. [MIO 5] As explained in the notice of proposed summary disposition [CN 5-6], Plaintiff’s reliance on Greiser is unpersuasive, and further, Plaintiff has not responded to our proposed analysis of Greiser with any persuasive facts, law, or argument.
discussed
Cited "see"
State v. Morris
(2×)
See generally State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (indicating, where a defendant’s memorandum in opposition did not respond to our proposed summary disposition an issue raised on appeal, that the issue was deemed abandoned). {6} Accordingly, for the reasons stated in our notice of proposed disposition and herein, we affirm. {7} IT IS SO ORDERED.
discussed
Cited "see"
State v. Serrano
(2×)
See generally State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (observing that where a memorandum in opposition does not respond to our proposed summary disposition with respect to an issue, that issue is deemed abandoned). {3} In his memorandum in opposition, Defendant maintains that the Facebook messages entered into evidence were not sufficiently authenticated. [MIO 4] We review evidentiary matters for an abuse of discretion.
discussed
Cited "see"
Barraza v. Solano
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (stating that when a case is decided on the summary calendar, an issue is deemed abandoned when a party fails to respond to the proposed disposition of that issue). {8} For the reasons set forth above, we affirm. {9} IT IS SO ORDERED.
discussed
Cited "see"
State v. Griffin
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 ; see also Hennessy v. Duryea, 1998-NMCA-036, ¶ 24 , 124 N.M. 754 , 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases, the burden is on the party opposing the proposed disposition to clearly point out errors in fact or law.”).
discussed
Cited "see"
State v. Watkins
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (explaining that when a case is decided on the summary calendar, an issue is deemed abandoned when a party fails to respond to the proposed disposition of that issue). {3} Accordingly, for the reasons stated in our notice of proposed disposition and herein, we affirm. {4} IT IS SO ORDERED.
discussed
Cited "see"
Franklin v. NM Dep't of Public Safety
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (providing that an issue is deemed abandoned where a party does not respond in opposition to the proposed disposition of the issue).
discussed
Cited "see"
State ex rel. CYFD v. Kelly M.
(2×)
See State v. Johnson, 1988- NMCA-029, ¶ 8, 107 N.M. 356 , 758 P.2d 306 (providing that an issue is deemed abandoned where a party does not respond in opposition to the proposed disposition of the issue); Hennessy v. Duryea, 1998-NMCA-036, ¶ 24 , 124 N.M. 754 , 955 P.2d 683 (noting that “the burden is on the party opposing the proposed disposition to clearly point out errors in fact or law”). {4} With regard to the sufficiency of the evidence to support termination, Mother’s memorandum continues to assert that during the pendency of this case she made progress toward resolving substance…
discussed
Cited "see"
TD Auto Finance, LLC v. Orozco
(2×)
See generally State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (observing that where a memorandum in opposition does not respond to our proposed summary disposition with respect to an issue, that issue is deemed abandoned). {3} Defendant’s memorandum in opposition instead raises two new issues: (1) that Texas law, including “the Texas Consumer Credit,” and federal law govern the contract; and (2) that matters related to the contract should be arbitrated rather than decided in a judicial forum. [MIO 6] Because these contentions were not raised as issues in Defendant’s…
discussed
Cited "see"
Del Curto v. Deschamps
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (explaining that when a case is decided on the summary calendar, an issue is deemed abandoned when a party fails to respond to the proposed disposition of that issue); State v. Mondragon, 1988-NMCA-027 , ¶ 10, 107 N.M. 421 , 759 P.2d 1003 (“A party responding to a summary calendar notice must come forward and specifically point out errors of law and fact.”), superseded by statute on other grounds as stated in State v. Harris, 2013-NMCA-031, ¶ 3 , 297 P.3d 374 . {4} Instead of arguing that our proposed analysis was in…
discussed
Cited "see"
Black v. Bright Start Dental
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (recognizing that failure to respond to the proposed disposition of an issue is an abandonment of that issue); Hennessy v. Duryea, 1998-NMCA-036, ¶ 24 , 124 N.M. 754 , 955 P.2d 683 (noting that “the burden is on the party opposing the proposed disposition to clearly point out errors in fact or law”). {3} Defendants’ memorandum also does not directly address the substance of our proposal that the arbitration provision at issue in this case is substantively unconscionable on the basis that it “is facially one-sided …
discussed
Cited "see"
State Ex Rel. CYFD v. Cassandra B.
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (stating that when a case is decided on the summary calendar, an issue is deemed abandoned when a party fails to respond to the proposed disposition of that issue). {8} Ultimately, we remain unpersuaded that Mother’s efforts and partial compliance with her plan equated to improvement in alleviating the conditions that caused Children’s neglect and abuse. [3 RP 598] See State ex rel.
discussed
Cited "see"
State v. Lee
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (stating that when a case is decided on the summary calendar, an issue is deemed abandoned when a party fails to respond to the proposed disposition of that issue). {7} When assessing the sufficiency of the evidence, “we view the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.” State v. Samora, 2016- NMSC-031, ¶ 34, 387 P.3d 230 (internal quotation marks and citation omitted).
discussed
Cited "see"
City of Roswell v. Lucero
(2×)
See State v. Johnson, 1988 -NMCA- 029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (stating that when a case is decided on the summary calendar, an issue is deemed abandoned where a party fails to respond to the proposed disposition of the issue).
discussed
Cited "see"
State Ex Rel. CYFD v. Franklin C.
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 ; see also Hennessy v. Duryea, 1998-NMCA-036, ¶ 24 , 124 N.M. 754 , 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar cases, the burden is on the party opposing the proposed disposition to clearly point out errors in fact or law.”).
discussed
Cited "see"
Smith v. Fletcher
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (explaining that when a case is decided on the summary calendar, an issue is deemed abandoned when a party fails to respond to the proposed disposition of that issue).
discussed
Cited "see"
State v. Springer
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (explaining that when a case is decided on the summary calendar, an issue is deemed abandoned when a party fails to respond to the proposed disposition of that issue). {3} Defendant continues to argue in his memorandum in opposition that the district court erred in denying his motion to dismiss probation violation and motion to reconsider because the probation officer did not have the authority to impose the sex offender behavioral contract since the district court “failed to hold a proper sentencing hearing under NMSA 1…
discussed
Cited "see"
State v. Canuto
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (explaining that when a case is decided on the summary calendar, an issue is deemed abandoned when a party fails to respond to the proposed disposition of that issue).
discussed
Cited "see"
Franken Constr. Co. v. Harris Rebar of N.M.
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (stating that when a case is decided on the summary calendar, an issue is deemed abandoned when a party fails to respond to the proposed disposition of that issue).
discussed
Cited "see"
State ex rel. CYFD v. Leandra B.
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (stating that when a case is decided on the summary calendar, an issue is deemed abandoned when a party fails to respond to the proposed disposition of that issue). {3} Regarding her substance abuse, Mother asserts the efforts were unreasonable because CYFD did not refer her to long-term residential treatment, which she claimed at the termination hearing is the only type of treatment that could alleviate her substance abuse. [MIO 2] Mother contends her position is supported by literature in the field, and claims CYFD’s w…
discussed
Cited "see"
Wells Fargo v. Martinez
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (explaining that when a case is decided on the summary calendar, an issue is deemed abandoned when a party fails to respond to the proposed disposition of that issue). {3} Accordingly, for the reasons stated in our notice of proposed disposition and herein, we affirm the district court’s orders. {4} IT IS SO ORDERED.
discussed
Cited "see"
Federal National Mortgage Association v. Chavez
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (explaining that when a case is decided on the summary calendar, an issue is deemed abandoned when a party fails to respond to the proposed disposition of that issue). {3} With regard to issues (c) and (d), Appellant argues that they were preserved, pointing to the record to indicate where such arguments were made. [MIO 1-2] Appellant also continues to argue issue e, which was addressed in our calendar notice.
discussed
Cited "see"
Caballero v. Villanueva
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 10 P.2d 306 (stating that when a case is decided on the summary calendar, an issue is 11 deemed abandoned when a party fails to respond to the proposed disposition of that 12 issue). 13 {8} For all of these reasons and those stated in the calendar notice, we affirm. 14 {9} IT IS SO ORDERED. 15 _______________________________ 16 LINDA M.
discussed
Cited "see"
State v. Urquidi
(2×)
See 13 State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (explaining that 14 when a case is decided on the summary calendar, an issue is deemed abandoned when 15 a party fails to respond to the proposed disposition of that issue). 16 {3} Instead of addressing the sufficiency of the evidence, Defendant seeks to amend 17 his docketing statement to argue that (1) the district court erred by refusing to instruct 18 the jury on self-defense [MIO 1-10]; (2) admission of testimony by two witnesses was 19 improper under Rule 11-403 NMRA [MIO 1, 10-12]; and (3) the district court erre…
discussed
Cited "see"
State v. Ortega
(2×)
See 10 State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 .
discussed
Cited "see"
City of Aztec v. Sisneroz
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 11 (explaining that when a case is decided on the summary calendar, an issue is deemed 12 abandoned when a party fails to respond to the proposed disposition of that issue).
discussed
Cited "see"
Selene Finance v. Duran
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 6 (explaining that, when a case is decided on the summary calendar, an issue is deemed 7 abandoned when a party fails to respond to the proposed disposition of that issue). 8 {7} Accordingly, for the reasons set forth in our notice of proposed disposition and 9 herein, we affirm. 10 {8} IT IS SO ORDERED. 11 ________________________________ 12 TIMOTHY L.
discussed
Cited "see"
U.S. Bank National Association v. Sandoval
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 6 N.M. 356 , 758 P.2d 306 (explaining that, when a case is decided on the summary 7 calendar, an issue is deemed abandoned when a party fails to respond to the proposed 8 disposition of that issue). 9 Motion to Amend 10 {10} In Section II of their response to this Court’s notice of proposed disposition, the 11 Sandovals “seek leave to amend their docketing statement to add a claim that the 12 [default] judgment is void pursuant to Rule 1-060(B)(4) because it was entered 13 without essential due process protections.” [MIO/Mot.
discussed
Cited "see"
Stahlbaum v. Pinson
(2×)
See generally State v. Johnson, 1988-NMCA-029 , ¶ 8, 9 107 N.M. 356 , 758 P.2d 306 (observing that where a party does not respond to our 10 proposed summary disposition with respect to an issue, that issue is deemed 11 abandoned). 12 {5} Accordingly, for the reasons stated above and in the notice of proposed 13 summary disposition, we reverse in part and remand for further proceedings consistent 14 herewith. 15 {6} IT IS SO ORDERED. 16 17 J.
discussed
Cited "see"
Hamood v. Malik
(2×)
See State v. Johnson, 7 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 (stating that when a case is 8 decided on the summary calendar, an issue is deemed abandoned where a party fails 9 to respond to the proposed disposition of the issue). 10 HSD Intervention 11 {6} In our notice of proposed summary disposition, we discussed permissive 12 intervention under Rule 1-024(B)(1) NMRA, which provides for permissive 13 intervention “when a statute confers a conditional right to intervene[.]” [See CN 4] We 14 noted that HSD moved for permission to intervene as a party to this case pursuant to 1…
discussed
Cited "see"
State v. Sutton
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 12 (indicating that issues raised in the docketing statement but not renewed in the 13 memorandum in opposition are deemed abandoned). 14 {3} As we observed in the notice of proposed summary disposition, the traffic stop 15 was validly premised on the officer’s observation of a traffic violation.
discussed
Cited "see"
Valles v. Ortiz
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 6 356 , 758 P.2d 306 (treating as abandoned issues not raised in a memorandum in 7 opposition to summary disposition). 8 {4} Defendant also continues to argue that the forfeiture at issue in this case should 9 shock this Court’s conscience. [MIO 3-4] In his docketing statement, Defendant 10 suggested that our resolution of that issue should turn upon factors described in 11 Buckingham, 1998-NMCA-012, ¶ 12 . [CN 6] Our proposed disposition noted that 12 some of the facts necessary to address those factors may not have been before the 13 di…
discussed
Cited "see"
Juan Tafoya Land Corp. v. S'holders of the Juan Tafoya Land Corp.
(2×)
See State v. Johnson, 1988-NMCA-029 , ¶ 8, 107 N.M. 356 , 758 P.2d 306 21 (recognizing that failure to respond to the proposed disposition of an issue is an 22 abandonment of that issue). 7 1 acknowledging transfers of shares due to death or assignment, and this case involved 2 no dispute regarding such transfers. 3 {10} Nonetheless, to the extent that the Corporation is now expanding its argument 4 to assert that the district court has precluded it from re-litigating the question of who 5 should have been issued corporate shares in the late 1970s, we agree: the Corporation 6 is precluded fro…
STATE of New Mexico, Plaintiff-Appellee,
v.
Floyd JOHNSON, Defendant-Appellant
v.
Floyd JOHNSON, Defendant-Appellant
10415.
New Mexico Court of Appeals.
Mar 29, 1988.
Phil Blenden, Jeffrey B. Diamond, Paine, Blenden & Diamond, Carlsbad, for defendant-appellant., Hal Stratton, Atty. Gen., Santa Fe, for plaintiff-appellee.
Bivins, Minzner, Fruman.
Cited by 134 opinions | Published
OPINION
The issue in this appeal is whether defendant was entitled, as a matter of right, to a trial de novo in district court following judgment against him on his guilty plea and disposition agreement in the magistrate court. The district court dismissed defendant’s appeal finding that, having entered a plea of guilty, defendant was not an “aggrieved party” as contemplated by SCRA 1986, 6-703, and relying on State v. Ball, 104 N.M. 176, 718 P.2d 686 (1986). Our calendar notice proposed summary affirmance and defendant filed a memorandum in opposition to that proposal. Defendant’s sole challenge to his guilty plea is based on the failure of the magistrate court to proceed pursuant to SCRA 1986, 6-502, which requires that the plea and disposition agreement be reduced to writing. We are not persuaded by defendant’s argument that State v. Ball has been reduced to an “anachronism” by Rule 6-502 and that failure to comply with the requirements of the rule renders his guilty plea constitutionally invalid. We, therefore, affirm the district court.
Defendant was charged in magistrate court with aggravated battery with great bodily harm, contrary to NMSA 1978, Section 30-3-5(C) (Repl.Pamp.1984), a third-degree felony. He agreed to plead guilty to aggravated battery, inflicting an injury not likely to cause death or great bodily harm, contrary to Section 30-3-5(B), a misdemeanor. Defendant states in his docketing statement that, represented by counsel, he bargained for and entered into a plea and disposition agreement. He makes no assertion that the plea was either involuntary or unknowing. Nor does defendant assert that the state breached the plea and disposition agreement. Rather, defendant complains that the disposition agreed to between the parties was that the magistrate court would order a presentence report. He states that no recommendation as to the actual sentence to be imposed was made a part of the plea and disposition agreement. We point out that a presentence report is not a disposition, but an aid to the sentencing court in reaching its disposition. See State v. Lack, 98 N.M. 500, 650 P.2d 22 (Ct.App.1982) (holding use of. a presentence report not mandatory). Defendant does not assert that he knowingly entered into the plea and disposition agreement without knowledge of the possible consequence of his plea or without knowledge that the magistrate court would act with the assistance of the presentence report and sentence him to be punished for the crime. Nor does defendant assert that the sentence imposed was illegal. The commonsense approach of State v. Ball is applicable to these circumstances:
Common sense tells us that a defendant who, voluntarily and aware of the consequences, pleads guilty ... cannot claim to be aggrieved because he did not receive a trial. Nor can he claim’to be aggrieved by the judgment and sentence rendered against him, so long as the [magistrate] court acted within its sentencing discretion.
Id., 104 N.M. at 183, 718 P.2d at 693. The magistrate court accepted the guilty plea and sentenced defendant to 364 days incarceration, suspended the sentence except for 180 days, and placed defendant on probation for the balance. Both the sentence and probation were within the authority of the magistrate court. NMSA 1978, § 31-19-1 (Repl.Pamp.1987).
If the only recommendation made by the state was that the magistrate court consider a presentence report before sentencing, that recommendation was accepted together with the plea. Under these circumstances described by defendant, the magistrate court accepted the agreement as voluntarily and knowingly entered into by defendant. See R. 6-502; see also Eller v. State, 92 N.M. 52, 582 P.2d 824 (1978). There is no indication that defendant attempted to withdraw his plea.
Defendant’s reliance on dicta in State v. Ball disregards the clear holding of that case. Defendant also disregards the earlier holding of the supreme court in State v. Tiption, 78 N.M. 600, 435 P.2d 430 (1967), reaffirmed in State v. Ball: “[A] plea of guilty, voluntarily made after proper advice of counsel and with full understanding of the consequences, is binding and waives objections to prior defects in the proceedings.” State v. Ball, 104 N.M. at 183, 718 P.2d at 693.
Defendant misapprehends the significance of the adoption of Rule 6-502. We do not doubt that the requirement that a plea agreement be reduced to writing provides evidence that a guilty plea is voluntary and knowingly given. The rule, however, affords no more than that. The supreme court held in State v. Ball that the constitutional guarantee of the right of appeal, N.M. Const, art. VI, § 27, was intended to extend only to persons aggrieved by judgments of inferior courts. Rule 6-502 does not alter the court’s express determination of the scope and limitations of the right of appeal guaranteed to criminal defendants.
State v. Ball also affirms the alternate holding of this court in State v. Bazan, 97 N.M. 531, 641 P.2d 1078 (Ct.App.1982):
[A defendant] who agrees not to be aggrieved by entering into a plea and disposition agreement, who alleges no constitutional invalidity in the plea and disposition agreement, and who does not seek to have his plea and disposition agreement withdrawn, is not an aggrieved party.
Id. at 534, 641 P.2d at 1081. The supreme court extended the holding of State v. Bazan, in turn holding that a defendant who has pleaded guilty without benefit of a plea agreement likewise is not an aggrieved party. In view of this precedent, we cannot now say that an accused who has entered into a plea agreement is nonetheless an aggrieved party because the agreement was not reduced to writing.
Defendant requested in his memorandum that this case be assigned to a non-summary calendar. Although the issue as framed by defendant is one of first impression, we find that the relevant facts are not in dispute and, as indicated above, the application of legal principles to those facts is clear. Therefore, no purpose would be served in reassigning this case to a non-summary calendar. See Garrison v. Safeway Stores, 102 N.M. 179, 692 P.2d 1328 (Ct.App.1984).
Defendant’s memorandum does not respond to our proposed disposition of the second issue he raises on appeal. Accordingly, this issue is deemed abandoned. State v. Martinez, 97 N.M. 585, 642 P.2d 188 (Ct.App.1982).
For the reasons stated above, we affirm the district court’s dismissal of defendant’s appeal from the judgment and sentence of the magistrate court.
IT IS SO ORDERED.