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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. 32,140

 5 FRANCISCO R. HERRERA,

 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 Yvonne M. Chicoine, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Acting Chief Public Defender
14 Allison H. Jaramillo, Assistant Public Defender
15 Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 FRY, Judge.
 1   {1}   Summary affirmance was proposed for the reasons stated in the calendar notice.

 2 No memorandum opposing summary affirmance has been filed, and the time for doing

 3 so has expired.

 4   {2}   Defendant has filed a response to the second calendar notice, stating that he will

 5 not be filing a memorandum in opposition to the second calendar notice. The State

 6 has also filed a response, stating that it will not be filing a memorandum in opposition

 7 to the second calendar notice. Therefore, for the reasons set forth in the first and

 8 second calendar notices, we affirm on Issues 1-4 and we reverse on Issues 5 and 6.

 9

10   {3}   Defendant admits that he was sentenced correctly because the parties agreed

11 that this was Defendant’s fourth DWI, and therefore a felony, as is aggravated

12 DWI(.16 or above). [Def. MIO 10, RP 153] In accordance with the second calendar

13 notice, however, we remand this case to the district court to correct the judgment and

14 sentence to reflect Defendant’s conviction for simple DWI (fourth offense) rather than

15 aggravated DWI (.16 or above), pursuant to the jury’s verdict forms. [RP 135, 136]

16   {4}   IT IS SO ORDERED.




17
18                                           CYNTHIA A. FRY, Judge


                                               2
1 WE CONCUR:


2
3 JONATHAN B. SUTIN, Judge



4
5 LINDA M. VANZI, Judge




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