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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, v. NO. 34,203 JAMES A. ORTEGA, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF CHAVEZ COUNTY Steven L. Bell, District Judge Hector H. Balderas, Attorney General Santa Fe, NM Kenneth H. Stalter, Assistant Attorney General Albuquerque, NM for Appellee Jorge A. Alvarado, Chief Public Defender Santa Fe, NM for Appellant 17 MEMORANDUM OPINION WECHSLER, Judge.

1 {1} Defendant appeals the district court's determination that his kidnapping conviction is a “serious violent offense” for the purposes of the Earned Meritorious Deductions Act (EMDA), NMSA 1978, § 33-2-34 (2006). We proposed to hold that the district court did not provide a sufficient basis for denying credit under the EMDA. The State has responded by indicating that it opposes our calendar notice only to the extent that it asks us to remand for additional factfinding on the EMDA issue, if appropriate. [MIO 3] We agree that remand for reconsideration of the issue is appropriate. State v. Morales, 2002-NMCA-016, ¶ 19, 131 N.M. 530, 39 P.3d 747, abrogated on other grounds by State v. Frawley, 2007-NMSC–057, ¶ 36, 143 N.M. 10 7, 172 P.3d 144.

11 {2} For the reasons set forth above and in our calendar notice, we reverse the EMDA determination and remand this matter to the district court pursuant to Morales.

14 {3} IT IS SO ORDERED.

15 ________________________________ 16 JAMES J. WECHSLER, Judge

17 WE CONCUR:

18 ________________________________ MICHAEL E. VIGIL, Chief Judge ________________________________ MICHAEL D. BUSTAMANTE, Judge