696 P.2d 1006 (N.M.App. 1984), 7622, State v. Edwards

Docket Nº:7622.
Citation:696 P.2d 1006, 102 N.M. 413, 1984 -NMCA- 070
Opinion Judge:[10] Minzner
Party Name:STATE of New Mexico, Plaintiff-Appellee, v. Billy EDWARDS, Defendant-Appellant.
Attorney:Paul Bardacke, Atty. Gen., Bill Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee., Holly A. Hart, Public Defender Dept., Santa Fe, for defendant-appellant. [7] PAUL BARDACKE, Attorney General, BILL PRIMM, Ass't Attorney General, Santa Fe, New Mexico, for Plaintiff-Appellee. [8] HOLLY A....
Judge Panel:NEAL and BIVINS, JJ., concur.
Case Date:June 26, 1984
Court:Court of Appeals of New Mexico
 
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Page 1006

696 P.2d 1006 (N.M.App. 1984)

102 N.M. 413, 1984 -NMCA- 070

STATE of New Mexico, Plaintiff-Appellee,

v.

Billy EDWARDS, Defendant-Appellant.

No. 7622.

Court of Appeals of New Mexico.

June 26, 1984

Certiorari Quashed March 6, 1985.

[102 N.M. 414]

Page 1007

Paul Bardacke, Atty. Gen., Bill Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Holly A. Hart, Public Defender Dept., Santa Fe, for defendant-appellant.

OPINION

MINZNER, Judge.

Defendant was originally convicted of five counts of practicing law without a license in violation of NMSA 1978, Section 36-2-28, in the Grant County Magistrate Court. The five counts were based upon the filing of five different pleadings on different dates but in the same action. Defendant appealed the convictions to the Luna County District Court, where he was again convicted of five counts of practicing without a license. A penalty of imprisonment not to exceed six months and a fine of up to $500 are provided by statute.

The Judgment and Sentence was filed and imposed on April 7, 1982. Defendant was sentenced to varying amounts of jail time for each conviction, totalling twenty months. The court ordered the defendant to serve six months, suspended fourteen months of the sentences, and ordered that defendant be placed on probation for that period. The court imposed two conditions on the probation:

(1) that "defendant shall receive psychotherapy, if available, as directed by the Area Human Resources Council, Inc. [AHRC]," and

(2) that defendant shall cease to practice law in any form.

No appeal was taken from the Judgment and Sentence.

Defendant completed his jail term in August 1982 and began serving probation. The State filed a Petition to Revoke Probation in June 1983, charging that defendant had violated the conditions of his probation. Following hearing, the district court found that defendant had violated both conditions of probation and directed that defendant serve three months additional jail time and pay the fine of $500 pursuant to the original Judgment and Sentence.

On appeal, defendant presents two issues. First, he argues that the five counts of practicing law without a license represented one offense under the statute and, consequently, he could be convicted of only one count. Therefore, he asserts, on revocation of probation the district court could not require that he serve additional jail time because he had already served six months, the maximum sentence for one offense authorized by the statute. Second, defendant argues that there was insufficient evidence that he violated either of the conditions of probation. Issues raised in the docketing statement but not briefed are abandoned. State v. Vogenthaler, 89 N.M. 150, 548 P.2d 112 (Ct.App.1976).

We reverse the trial court with respect to the first issue. Because of our disposition of this issue, we do not reach defendant's second argument on appeal. First we discuss the possibility that defendant waived the issue of double jeopardy. Then we address the question of whether, on these facts, the legislature intended to authorize punishment for more than one offense.

WAIVER

The State contends that defendant waived his right to raise the issue of whether the five counts represented one offense. The State relies on the fact that on appeal defendant has argued only that the offenses should be merged as a matter of policy, rather than as a question of double jeopardy. The State concludes that defendant failed to preserve error as required when raising a non-jurisdictional error.

NMSA 1978, Section 30-1-10 provides, in relevant part: "No person shall be twice put in jeopardy for the same crime. The...

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