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

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                           NO. 31,423

 5 KYLE MUELLER,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
 8 Steven L. Bell, District Judge

 9 Gary K. King, Attorney General
10 Ralph E. Trujillo, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Jacqueline L. Cooper, Chief Public Defender
14 Kathleen T. Baldridge, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 FRY, Judge.
 1        We issued a second notice, proposing to reverse the district court’s

 2 enhancement of Defendant’s sentence for the use of a firearm. We agreed with

 3 Defendant that the district court erred in enhancing Defendant’s sentence without first

 4 issuing a special interrogatory to the jury concerning Defendant’s use of the firearm.

 5 Because the special interrogatory is required under NMSA 1978, Section 31-18-16(C)

 6 (1993), we proposed to conclude that the omission was a “mistake in the process” that

 7 rendered the enhancement of Defendant’s sentence fundamentally unfair, and

 8 therefore reversible under a fundamental-error analysis. [CN2 7]

 9        The State has responded to our second notice, and we have duly considered the

10 State’s response.     While the State argues that a fundamental-error analysis is

11 misplaced under the facts and procedure of this case, [MIR 2-4] it concedes, for other

12 reasons, that the omission of the special interrogatory constituted reversible error with

13 regard to the enhancement of Defendant’s sentence. [MIR 2, 4] Because the State

14 does not oppose our proposed disposition, we hereby reverse the enhancement of

15 Defendant’s sentence for use of a firearm, and remand to the district court for entry

16 of a sentence that does not include the firearm enhancement.

17        CONCLUSION




                                               2
1        For the reasons set forth above, and in our second notice of proposed summary

2 disposition, we reverse the district court’s enhancement of Defendant’s sentence for

3 the use of a firearm, and remand to the district court for the entry of a sentence that

4 does not incorporate the firearm enhancement.

5        IT IS SO ORDERED.




6
7                                         CYNTHIA A. FRY, Judge

8 WE CONCUR:



 9
10 RODERICK T. KENNEDY, Judge


11
12 LINDA M. VANZI, Judge




                                             3
