May 11, 2020- State of New Mexico v. Debryant Banks, No. A-1-CA-38292

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Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-38292	4
DEBRYANT BANKS,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY	7
Lee A. Kirksey, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
Lauren J. Wolongevicz, Assistant Attorney General	11
Albuquerque, NM	12
for Appellee	13
Bennett J. Baur, Chief Public Defender	14
Santa Fe, NM	15
Victor E. Sanchez, Jr., Assistant Appellate Defender	16
Albuquerque, NM	17
for Appellant	18
MEMORANDUM OPINION	19
VANZI, Judge.	20
{1} 	Defendant appeals the district court’s judgment and sentence and commitment	21
to the New Mexico Department of Corrections based upon the court’s determination	22
that Defendant’s conviction for robbery was a “serious violent offense,” pursuant to	23
Court of Appeals of New Mexico
Filed 5/11/2020 11:42 AM

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the Earned Meritorious Deductions Act (EMDA), NMSA 1978, Section 33-2-	1
34(L)(4)(o)(13) (2015). This Court filed a notice of proposed disposition proposing	2
to reverse and remand on the basis that it is for the district court in the first instance	3
to make findings related to its application of the EMDA, and therefore, absent any	4
such findings, this Court is unable to review whether the district court abused its	5
discretion. [CN 2-3] The State filed a notice of non-opposition, indicating that it will	6
not be filing a memorandum in opposition to the notice of proposed disposition.	7
Defendant filed a notice of intent not to file a memorandum in support, but did not	8
otherwise expressly indicate its opposition or point to any error in fact or law with the	9
proposed disposition. See State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421,	10
759 P.2d 1003 (stating that a party responding to a summary calendar notice must	11
come forward and specifically point out errors of law and fact), superseded by statute	12
on other grounds as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374.	13
{2} 	We therefore reverse and remand to the district court for consideration of	14
whether the facts in the record support a determination that Defendant’s robbery	15
conviction constituted a serious violent offense under the EMDA and for entry of	16
findings in that regard.	17

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{3} 	IT IS SO ORDERED.	1
2
LINDA M. VANZI, Judge	3
WE CONCUR:	4
______________________________	5
KRISTINA BOGARDUS, Judge	6
7
JACQUELINE R. MEDINA, Judge	8