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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO STATE OF NEW MEXICO, 3 Plaintiff-Appellee, v. NO. 31,423 KYLE MUELLER, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY Steven L. Bell, District Judge Gary K. King, Attorney General Ralph E. Trujillo, Assistant Attorney General Santa Fe, NM for Appellee Jacqueline L. Cooper, Chief Public Defender Kathleen T. Baldridge, Assistant Appellate Defender Santa Fe, NM for Appellant 17 MEMORANDUM OPINION FRY, Judge.

1 We issued a second notice, proposing to reverse the district court’s enhancement of Defendant’s sentence for the use of a firearm. We agreed with Defendant that the district court erred in enhancing Defendant’s sentence without first issuing a special interrogatory to the jury concerning Defendant’s use of the firearm.

5 Because the special interrogatory is required under NMSA 1978, Section 31-18-16(C) (1993), we proposed to conclude that the omission was a “mistake in the process” that rendered the enhancement of Defendant’s sentence fundamentally unfair, and therefore reversible under a fundamental-error analysis. [CN2 7] 9 The State has responded to our second notice, and we have duly considered the State’s response. While the State argues that a fundamental-error analysis is misplaced under the facts and procedure of this case, [MIR 2-4] it concedes, for other reasons, that the omission of the special interrogatory constituted reversible error with regard to the enhancement of Defendant’s sentence. [MIR 2, 4] Because the State does not oppose our proposed disposition, we hereby reverse the enhancement of Defendant’s sentence for use of a firearm, and remand to the district court for entry of a sentence that does not include the firearm enhancement.

17 CONCLUSION

1 For the reasons set forth above, and in our second notice of proposed summary disposition, we reverse the district court’s enhancement of Defendant’s sentence for the use of a firearm, and remand to the district court for the entry of a sentence that does not incorporate the firearm enhancement.

5 IT IS SO ORDERED.

7 CYNTHIA A. FRY, Judge WE CONCUR:

10 RODERICK T. KENNEDY, Judge

12 LINDA M. VANZI, Judge