Ex Parte Lucero.
| Decision Date | 12 November 1917 |
| Docket Number | No. 1978.,1978. |
| Citation | 168 P. 713,23 N.M. 433 |
| Parties | Ex parte LUCERO. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
A convict is entitled to notice and an opportunity to be heard upon the question as to whether he has violated the conditions upon which the sentence against him has been suspended, where, as in this case, the suspension was during good behavior, which necessarily involves a question of fact. In proceedings to determine such a question, no particular formalities need be observed, and the convict is not entitled to a jury trial, except upon the question of his identity with the person originally sentenced, if such question is raised.
Additional Syllabus by Editorial Staff.
A suspended sentence can be enforced after the time for which the sentence was originally imposed has expired.
Habeas corpus by Miramon Lucero. Prisoner discharged without prejudice to further action in matter of enforcement of sentence.
Convict is entitled to notice and opportunity to be heard as to whether he has violated conditions under which his sentence has been suspended during good behavior; it necessarily involving question of fact.
A. B. Renehan, of Santa Fé, for relator.
Harry S. Bowman, Asst. Atty. Gen., for the State.
On April 29, 1913, the petitioner was sentenced to serve a term in the penitentiary of not less than two, nor more than three years, upon the plea of guilty, under an indictment in Bernalillo county, charging the larceny of a horse. The judgment of the district court was suspended during the good behavior of the defendant. Thereafter on November 2, 1915, an indictment was returned in Lincoln county against the petitioner and others, charging them with the larceny of 12 horses. Thereafter on May 18, 1916, a certified copy of the indictment in Lincoln county was filed in the original cause in Bernalillo county, and thereupon the court found that the petitioner had violated the conditions upon which the sentence, theretofore pronounced against him, was suspended, and ordered that said sentence be enforced against the petitioner, and that commitment be issued upon the judgment, which was done. The petitioner was arrested and brought to the penitentiary, where he now is confined. Petitioner thereupon sued out a writ of habeas corpus in this court, and the same has been argued and submitted.
Counsel for petitioner make two contentions in the case: First, upon the determination of the question as to the breach of the condition of a suspended sentence, the defendant is entitled to be heard; second, a suspended sentence cannot be enforced after the time for which the sentence was originally imposed has expired.
[2] 1. The second contention above stated is foreclosed by a previous holding of this court in Ex parte Lujan, 18 N. M. 310, 137 Pac. 587. In that case the defendant was committed to the penitentiary after the time that his sentence would have expired had he served the same. We held that the fact that the time covered by the sentence had expired was immaterial, and that the sentence might be enforced at any time thereafter upon the breach of the conditions upon which it was suspended. We see no reason to depart from the holding in that case.
[1] 2. It appears that the proceedings leading to the issuance of the commitment against the petitioner were entirely ex parte. So far as it appears from the record he was not present in person or by counsel, and had no hearing as to whether he had breached the condition. Counsel on each side state that there is no precedent to be found in the books touching this proposition. Counsel for petitioner likens a suspended sentence to a conditional pardon, and cites authority to the effect that where a man has been conditionally pardoned, and is alleged to have violated the conditions of his pardon, his guilt must be established in due form of law and by the same processes as apply in other cases.
Ex parte Alvarez, 50 Fla. 24, 39 South. 481, 111 Am. St. Rep. 102, 7 Ann. Cas. 88, was a case of a conditional pardon. It appears that in that case the petitioner was arrested by the sheriff for having violated the conditions of his pardon upon the request of the state board of pardons. There was no authority in the state board of pardons to ascertain or determine whether or not there had been a violation of, or noncompliance with, the conditions of the pardon, or to rearrest the convict and order the execution of the original sentence. The court held that the order made by the board of pardons undertaking to judge of the violation of the conditions of the pardon and ordering the recommitment of the petitioner was a nullity. The conditional pardon granted to the petitioner, however, in express terms authorized any sheriff of the state to rearrest him upon his violating the conditions of the pardon, and the court held, therefore, that it became the duty of the sheriff, notwithstanding the nullity of the order of the board of pardons, to arrest the petitioner and detain him until such alleged violation could be inquired into and determined by the proper authorities and to bring such alleged violation promptly to the attention of some court of general criminal jurisdiction to be there disposed of. The case was heard in the lower court upon a writ of habeas corpus, and the Florida Supreme Court held that in that proceeding the court below should have instituted an inquiry as to the truth of the alleged violation of the conditions of the pardon. The inquiry not having been made, the case was reversed and remanded to the lower court, with directions that in the habeas corpus proceedings it should make inquiry into the truth of the alleged violation of the conditions of the pardon, and if the violation was found to exist, that the petitioner be remanded to custody, or if such violation should not be established, he should be discharged; and that the defendant in the meantime remain in custody, unless he give a certain prescribed bond for his appearance before the court below. The court quotes from and relies upon 24 A. & E. Encyc. Law, p. 959 et seq.
In People v. Moore, 62 Mich. 496, 29 N. W. 80, it was held that a statute providing for the rearrest and remanding of...
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Williams v. Com.
...1065, 19 L.R.A. 783 (conditional pardon). Mason v. Cochran, 209 Miss. 163, 169--170, 46 So.2d 106 (suspended sentence). Ex parte Lucero, 23 N.M. 433, 436--439, 168 P. 713, L.R.A.1918C, 549 (suspended sentence). State v. Phillips, 185 N.C. 614, 620--622, 115 S.E. 893 (suspended sentence). St......
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Ex parte Anderson
...v. Meyer, 228 Minn. 286, 37 N.W.2d 3; McCain et al. v. Sheppard, 34 Ala.App. 431, 34 So.2d 225. Plaintiff also relies upon Ex parte Lucero, 23 N.M. 433, 168 P. 713, L.R.A.1918C, 549; State v. O'Neal, 147 Wash. 169, 265 P. 175; United States v. Van Riper, 2 Cir., 99 F.2d 816; State v. Zolant......
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Cole v. Holliday
...supra. Also in point is Blea v. Cox, 75 N.M. 265, 403 P.2d 701, 702--703, where the court said: 'As long ago as 1917, in Ex parte Lucero, 23 N.M. 433, 168 P. 713, L.R.A.1918C, 549, this court passed on the necessity of preserving constitutional guaranties in hearings seeking to revoke the s......
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State v. Guthrie
...to due process in a probation revocation hearing means, at a minimum, notice and an opportunity to be heard. See Ex parte Lucero, 23 N.M. 433, 438–39, 168 P. 713, 715 (1917), superseded by statute as stated in State v. Holland, 78 N.M. 324, 431 P.2d 57 (1967). Our Court of Appeals later ado......