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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Filing Date: February 4, 2021

No. S-1-SC-37543

STATE OF NEW MEXICO,

Plaintiff-Appellant,

v.

DAVID STEVEN BARBER,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Brett R. Loveless, District Judge

Hector H. Balderas, Attorney General M. Victoria Wilson, Assistant Attorney General Santa Fe, NM

for Appellant

Jeffery J. Buckels, Esq. Albuquerque, NM

for Appellee

DISPOSITIONAL ORDER

{1} WHEREAS, this matter came before the Court upon the State’s appeal from the district court’s dismissal of Defendant’s first-degree, felony-murder charge pursuant to NMSA 1978, Section 39-3-3(B)(1) (1972), which provides the right of appeal from an “order dismissing a complaint, indictment or information as to any one or more counts.” See also State v. Smallwood, 2007-NMSC-005, ¶¶ 10-11, 141 N.M. 178, 152 P.3d 821 (concluding that cases “where a defendant may possibly be sentenced to life imprisonment or death” are properly appealed directly to this Court);

{2} WHEREAS, the State notified this Court that State v. Elexus Jolaine Groves & Paul Anthony Garcia, S-1-SC-37039, raised the same legal issue and was currently pending on the Court’s general calendar. See Rule 12-202(G) NMRA (providing that “[a] party has a continuing obligation to alert the appellate court to any related appeals that come to the party’s attention”);

{3} WHEREAS, this Court has issued an opinion, State v. Elexus Jolaine Groves & Paul Anthony Garcia, 2021-NMSC- 003, ___ P.3d ___ (S-1-SC-37039, Nov. 30, 2020);

{4} WHEREAS, this Court concludes that the issue of law presented in this case was decided by the Court’s disposition in State v. Elexus Jolaine Groves & Paul Anthony Garcia; and

{5} WHEREAS, the Court exercises its discretion under Rule 12-405(B)(1) and (2) NMRA to dispose of a case by nonprecedential order rather than a formal opinion;

{6} NOW, THEREFORE, IT IS ORDERED that the district court’s order dismissing Defendant’s first-degree, felony-murder charge alternative to Count 1 is vacated, and this matter is remanded for further proceedings.

{7} IT IS SO ORDERED.

MICHAEL E. VIGIL, Chief Justice

BARBARA J. VIGIL, Justice

C. SHANNON BACON, Justice

DAVID K. THOMSON, Justice

JUDITH K. NAKAMURA, Justice, Retired, Sitting by designation