641 P.2d 1078 (N.M.App. 1982), 5362, State v. Bazan

Docket Nº:5362.
Citation:641 P.2d 1078, 97 N.M. 531, 1982 -NMCA- 018
Opinion Judge:[10] Walters
Party Name:STATE of New Mexico, Plaintiff-Appellee, v. Orlando BAZAN, Defendant-Appellant.
Attorney:Ralph C. Binford, Albuquerque, for defendant-appellant., Jeff Bingaman, Atty. Gen., Anthony Tupler, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee. [7] JEFF BINGAMAN, Attorney General, ANTHONY TUPLER, Asst. Attorney General, Santa Fe, New Mexico, Attorneys for Plaintiff-Appellee. [8] RALPH C...
Judge Panel:HENDLEY and LOPEZ, JJ., concur.
Case Date:January 28, 1982
Court:Court of Appeals of New Mexico

Page 1078

641 P.2d 1078 (N.M.App. 1982)

97 N.M. 531, 1982 -NMCA- 018

STATE of New Mexico, Plaintiff-Appellee,

v.

Orlando BAZAN, Defendant-Appellant.

No. 5362.

Court of Appeals of New Mexico

January 28, 1982

Writ of Certiorari Denied Feb. 26, 1982.

Ralph C. Binford, Albuquerque, for defendant-appellant.

Jeff Bingaman, Atty. Gen., Anthony Tupler, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WALTERS, Chief Judge.

The sole issue presented by this appeal is whether the defendant was entitled, as a matter of right, to a trial de novo in district court following judgment against him on his guilty plea and disposition agreement in [97 N.M. 532]

Page 1079

the metropolitan court. The trial court decided he was not; we affirm.

Defendant was charged in metropolitan court with three misdemeanor offenses. He entered into a plea and disposition agreement with the State, and the agreement was approved by a judge of the metropolitan court. Under that agreement, the State dismissed two of the misdemeanors and defendant pleaded guilty to driving while intoxicated, second offense. He was sentenced to imprisonment for 180 days. Defendant appealed his conviction to district court.

The district judge dismissed defendant's appeal, on the State's motion, finding:

1. City of Albuquerque v. Sanchez, 81 N.M. 272, 466 P.2d 118 (1970), is inapplicable to these cases as there was no plea and disposition agreement in Sanchez (supra), rather, a plea of guilty to the charges.

2. There has been no allegation that the State has breached the plea and disposition agreement.

3. That there has been no allegation that the sentences from the lower court were illegal.

4. That there has been no allegation by defense counsel that they attempted to withdraw the plea and disposition agreement in the lower court.

5. That the plea and disposition agreement executed by and between the State of New Mexico and the respective defendant is a contract.

6. That the defendants have not claimed that an ambiguity exists in the plea and disposition agreement signed by the State in respect of defendants.

7. That the defendants have not asserted or claimed that the plea agreement was involuntary.

8. That the defendants may appeal a conviction resulting from a plea of guilty or nolo contendere. However defendants may not appeal a conviction, nor a sentence entered after the court accepts a plea and disposition agreement, absent a showing of an abuse of discretion, due to their having waived same.

The final order of the district court provided "that the defendant has no right to a trial de novo upon appeal of a conviction after a plea of guilty on a plea and disposition agreement entered in the metropolitan court."

The district court remanded the case to the metropolitan court for imposition of the sentence.

We discuss two grounds for upholding the trial court's...

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