1997 -NMCA- 123, State v. Carrasco
| Decision Date | 07 November 1997 |
| Docket Number | No. 16786,16786 |
| Citation | 1997 NMCA 123,124 N.M. 320,950 P.2d 293 |
| Parties | , 1997 -NMCA- 123 STATE of New Mexico, Plaintiff-Appellee, v. Yolanda CARRASCO, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
¶1 Defendant appeals from an order directing the payment of restitution for damages incurred as a result of a false report of a bomb having been placed in a public location. The central issue presented on appeal is whether the trial court had jurisdiction to enter an order determining that Defendant failed to satisfy the obligations of her probation and directing that she receive an unsatisfactory discharge from probation. Other issues raised in the docketing statement and not briefed on appeal are deemed abandoned. See State v. Pettigrew, 116 N.M. 135, 137-38, 860 P.2d 777, 779-80 (Ct.App.1993). Reversed and remanded.
¶2 Defendant pleaded guilty on August 15, 1994, to the charge of making a bomb scare, contrary to NMSA 1978, Section 30-20-16 (1981), at Carlsbad Caverns National Park in Carlsbad, New Mexico. Following the entry of her plea, the trial court found Defendant guilty of a fourth-degree felony, imposed a sentence of eighteen months imprisonment, but suspended all of the sentence except for ninety days to be served at the Eddy County jail. The judgment and sentence entered on September 29, 1994, also provided that "Defendant shall make restitution to the victim in this case in an amount to be determined at a later date" and "Defendant shall pay probation costs not to exceed $25.00 per month." An order of probation was entered on March 1, 1995, detailing general conditions of Defendant's probation, and also directing that she "pay restitution, as directed by [her] Probation Officer in the amount ... to be determined."
¶3 On August 4, 1995, approximately ten months after entry of the judgment and sentence, the trial court held a hearing to determine the amount of restitution that should be paid by Defendant. Thereafter, on August 11, 1995, the trial court entered an order requiring Defendant to pay restitution in the amount of $4,302.75 to the United States Department of the Interior, Carlsbad Caverns National Park, and directing that "the Department of Probation and Parole shall determine the Defendant's ability to pay ... restitution and set up a payment schedule that is reasonable to all parties." Defendant filed a timely appeal from the restitution order on September 11, 1995.
¶4 On January 31, 1996, during the pendency of her appeal from the restitution order, Defendant filed a motion with the trial court seeking to modify the restitution order and the terms of her probation. Following a hearing on Defendant's motion, the trial court entered an order and certificate dated February 12, 1996, finding that "the period of probation has expired and the defendant has not fulfilled the obligations of ... probation," and specifying that Defendant should receive an unsatisfactory discharge from probation.
¶5 Defendant argues that the order and certificate decreeing that she failed to comply with the terms of her probation and that she be given an unsatisfactory discharge, deprived her of due process because the court failed to inquire into and determine her ability to pay restitution, and the court failed to provide her with notice and an opportunity to be heard on the type of discharge which should be issued.
¶6 In reviewing this argument, we first address a jurisdictional question, namely, whether at the time the trial court conducted the hearing on the issue of Defendant's compliance with the restitution order, 1 and whether at the time the trial court issued its order of unsatisfactory discharge, it had jurisdiction to consider and rule upon such matter. The State concedes, and we agree, that the trial court was without jurisdiction to take such action because the trial court was deprived of jurisdiction during the pendency of Defendant's appeal to this Court. See State ex rel. Bell v. Hansen Lumber Co., 86 N.M. 312, 313, 523 P.2d 810, 811 (1974) (); State v. Garcia, 99 N.M. 466, 469-70, 659 P.2d 918, 921-22 (Ct.App.1983) (). See generally George Blum, Annotation, Filing of Notice of Appeal as Affecting Jurisdiction of State Trial Court to Consider Motion to Vacate Judgment, 5 A.L.R.5th 422 (1992).
¶7 Although resolution of this issue renders the order and certificate of unsatisfactory discharge invalid, in the interest of judicial economy, we address the due process issue briefed by the parties, since it is likely to reoccur following remand to the trial court.
¶8 Examination of the record fails to indicate whether the trial court premised its order specifying that Defendant be awarded an unsatisfactory discharge on her alleged failure to pay restitution, her failure to pay the costs of probation, or both. The State argues that, under the circumstances presented here, there can be no infringement of Defendant's due process rights because the order finding that Defendant was entitled to an unsatisfactory discharge did not cause any increase in, or other modification to, the initial sentence imposed by the trial court. We find this argument unpersuasive. Defendant points out that the effect of the order decreeing that she be awarded an unsatisfactory discharge is to materially delay and restrict her right to apply for an executive pardon or certificate restoring her rights of citizenship. 2 We agree with Defendant that, under the circumstances presented here, the issuance of an order determining that she be discharged from probation with an unsatisfactory discharge for failure to comply with the terms of her probation implicates her due process rights. As observed in State v. Lack, 98 N.M. 500, 506, 650 P.2d 22, 28 (Ct.App.1982), prior to entering an order requiring the payment of restitution, a trial court is required to review the defendant's plan of restitution and the recommendations of the defendant's parole or probation officer. Thereafter, the court "is required to enter an order approving, disapproving, or modifying the plan after considering each of the factors enumerated in [NMSA 1978, Section 31-17-1(D) (1977)] including determination of the defendant's ability to pay restitution and the times and amounts of restitution payable." Id. (emphasis added); see also State v. Whitaker, 110 N.M. 486,...
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