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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. 35,189 BRANDT THROWER, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY Dalene Marsh, District Judge Hector H. Balderas, Attorney General Santa Fe, NM M. Anne Kelly, Assistant Attorney General Albuquerque, NM for Appellee Tyson Quail Farmington, NM for Appellant

17 MEMORANDUM OPINION BUSTAMANTE, Judge.

1 {1} Having entered a conditional plea in magistrate court, Defendant Brandt Thrower appealed to the district court for review of the denial of his motion to dismiss. The district court also denied Defendant’s motion to dismiss, [RP 30] and this appeal followed. Summary reversal was proposed for the reasons stated in the notice of proposed disposition filed on April 15, 2016. On May 16, 2016, the State filed a response to our proposed disposition noting its intention not to file a memorandum in opposition. Accordingly, we reverse the district court’s denial of Defendant’s motion to dismiss for the reasons stated in this Court’s notice of proposed disposition. In addition, consistent with the procedures set forth in State v. Celusniak, 2004-NMCA-070, ¶¶ 8-15, 135 N.M. 728, 93 P.3d 10, we remand to the district court so that it may issue an order of remand to the magistrate court permitting Defendant to withdraw his conditional plea.

13 {2} IT IS SO ORDERED.

15 _______________________________________ 16 MICHAEL D. BUSTAMANTE, Judge WE CONCUR:

19 MICHAEL E. VIGIL, Chief Judge

2 TIMOTHY L. GARCIA, Judge