434 P.2d 692 (N.M. 1967), 8312, State v. Henry

Docket Nº:8312.
Citation:434 P.2d 692, 78 N.M. 573, 1967 -NMSC- 265
Opinion Judge:[10] Chavez
Party Name:STATE of New Mexico, Plaintiff-Appellee, v. Billy Ray HENRY, Defendant-Appellant.
Attorney:George M. Murphy, Clovis, for appellant., Boston E. Witt, Atty. Gen., Roy G. Hill, Myles E. Flint, Asst. Attys. Gen., Santa Fe, for appellee. [7] BOSTON E. WITT, Attorney General, ROY G. HILL, MYLES E. FLINT, Assistant Attorneys General, Santa Fe, New Mexico, Attorneys for Appellee. [8] GEORGE M...
Case Date:December 11, 1967
Court:Supreme Court of New Mexico
 
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Page 692

434 P.2d 692 (N.M. 1967)

78 N.M. 573, 1967 -NMSC- 265

STATE of New Mexico, Plaintiff-Appellee,

v.

Billy Ray HENRY, Defendant-Appellant.

No. 8312.

Supreme Court of New Mexico.

December 11, 1967

[78 N.M. 573] George M. Murphy, Clovis, for appellant.

Boston E. Witt, Atty. Gen., Roy G. Hill, Myles E. Flint, Asst. Attys. Gen., Santa Fe, for appellee.

OPINION

PER CURIAM:

Upon its own motion, the court hereby withdraws its opinion handed down on November 27, 1967, in this case and substitutes the following therefor.

CHAVEZ, Chief Justice.

Defendant-appellant Billy Ray Henry was tried in the district court of Curry County on a charge of armed robbery. He was convicted by a jury and judgment and sentence were entered accordingly. On appeal, this court affirmed the judgment of the district court. State v. Henry, 76 N.M. 101, 412 P.2d 398. Thereafter, and while confined in the New Mexico State Penitentiary, defendant filed a motion under Rule 93 (§ 21--1--1(93), N.M.S.A., 1953 Comp., 1967 Pocket Supp.), to vacate the judgment and sentence. The motion was denied by the trial court and defendant appealed.

Appellant first contends that, at the time of his arrest, he was kept in jail as a juvenile for a month before being taken before a justice of the peace and charged with armed robbery, thus denying him of a right to a speedy trial and due process.

Appellant was arrested on September 23, 1964. On October 15, 1964, 22 days later, [78 N.M. 574]

Page 693

appellant appeared before the juvenile court and entered a plea of not guilty to the charge of armed robbery. At that time, the hearing was postponed until Thursday, October 22, 1964, evidently to give appellant's parents an opportunity to hire an attorney. However, at the October 15, 1964, hearing the trial court appointed counsel to represent appellant in the juvenile proceedings. At the juvenile hearing on October 22, 1964, appellant appeared in person and with his court-appointed counsel. The juvenile court found that appellant was under the age of 18 years and, being charged with the commission of an offense, which if committed by an adult would constitute a felony, under the laws of New Mexico determined that the matter be transferred and certified to the criminal docket of the district court in Curry County. Also on October 22, 1964, appellant was arraigned in the district court, where he was represented by counsel. Through his attorney, appellant stated in open court that he waived his right to a preliminary hearing and entered a plea...

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