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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. 35,350 JERRY CAPPS, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY Lisa B. Riley, District Judge Hector H. Balderas, Attorney General Santa Fe, NM Laurie Blevins, Assistant Attorney General Albuquerque, NM for Appellee L. Helen Bennett, P.C.

15 L. Helen Bennett Albuquerque, NM for Appellant 18 MEMORANDUM OPINION VIGIL, Judge.

20 {1} Defendant appeals his judgment and sentence following conviction of two counts of possession of a controlled substance, challenging the district court’s calculation of credit for presentence confinement. This Court’s second notice of proposed summary disposition proposed to hold that Defendant was entitled to presentence confinement credit for seventy days that were omitted from the calculation below. [2CN 3] In response, the State has filed a notice that it concurs in that proposed disposition. We, therefore, reverse the sentence entered below and remand this case to the district court for the purpose of recalculating Defendant’s presentence confinement and entering a new sentence, in accordance with NMSA 1978, Section 31-20-12 (1977).

10 {2} IT IS SO ORDERED.

11 __________________________________ 12 MICHAEL E. VIGIL, Judge

13 WE CONCUR:

14 ____________________________ JAMES J. WECHSLER, Judge

16 ____________________________ STEPHEN G. FRENCH, Judge