 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                           NO. 29,648

10 JOSEPH P. MARTINEZ,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 LISA SCHULTZ, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender
18 Nancy Hewitt, Appellate Defender
19 Santa Fe, NM

20 Steven J. Lucero, Practicing Law Student
21 Albuquerque, NM

22 Scott M. Davidson, Adjunct Professor
23 Albuquerque, NM
 1 Trace L. Rabern, Adjunct Professor
 2 Santa Fe, NM

 3 for Appellant

 4                            MEMORANDUM OPINION

 5 WECHSLER, Judge.

 6        Defendant appeals from the revocation of his probation. The notice proposed

 7 to affirm. Defendant filed an untimely memorandum in opposition. See Rule 12-

 8 210(D)(3) NMRA (setting forth a twenty day period for filing a memorandum in

 9 opposition). We request that Defendant’s counsel comply with the appropriate filing

10 period in future cases. As provided in the attached order, we grant the request to

11 allow a practicing law student appearance. We remain unpersuaded by Defendant’s

12 arguments and therefore affirm.

13        Defendant continues to argue that the district court erred in denying him credit

14 against his probation for the period from January 20, 2009 (the date of the probation

15 violation) through March 3, 2009 (the date of Defendant’s arrest on a warrant)

16 because the State failed to prove fugitive status. [DS 4; MIO 2-4] See generally State

17 v. Neal, 2007-NMCA-086, ¶ 30, 142 N.M. 487, 167 P.3d 935 (providing that the

18 probationer is entitled to credit for any time on probation unless the state can show

19 that the probationer was a fugitive from justice because the warrant for the return of

                                              2
 1 the probationer could not be served).

 2          In support of his argument, Defendant refers [MIO 1] to State v. Franklin, 78

 3 N.M. 127, 129, 428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M. 655, 658-60,

 4 712 P.2d 1, 4-6 (Ct. App. 1985). As acknowledged [MIO 3] by Defendant, he was

 5 given probation credit for this time period. Specifically, the revocation order in

 6 relevant part states, “[t]he Defendant shall further receive credit from August 19,

 7 2008, the date the Defendant was placed on probation, through May 7, 2009, the date

 8 the Defendant was sentenced on the Petition to Revoke Probation.” [RP 168] For this

 9 reason, we hold that the error about which Defendant complains on appeal did not

10 occur.

11          For reasons set forth above, we affirm.

12          IT IS SO ORDERED.



13                                                 _______________________________
14                                                 JAMES J. WECHSLER, Judge

15 WE CONCUR:



16 _________________________________
17 CYNTHIA A. FRY, Chief Judge


                                               3
1 _________________________________
2 MICHAEL D. BUSTAMANTE, Judge




                                  4
