French v. Cox

• Decision Date: 30 October 1964
• Docket Number: No. 7753,7753
• Citation: French v. Cox, 74 N.M. 593, 396 P.2d 423, 1964 NMSC 236 (N.M. 1964)
• Parties: Charles A. FRENCH, Petitioner, v. Harold A. COX, Warden, New Mexico State Penitentiary, Respondent.
• Court: New Mexico Supreme Court

Page 423

396 P.2d 423

74 N.M. 593

Charles A. FRENCH, Petitioner, v. Harold A. COX, Warden, New Mexico State Penitentiary, Respondent.

No. 7753.

Supreme Court of New Mexico.

Oct. 30, 1964.

Edward T. Johnson, Santa Fe, for petitioner.

Earl E. Hartley, Atty. Gen., L. D. Harris, Sp. Asst. Atty. Gen., Santa Fe, for respondent.

PER CURIAM.

Petitioner seeks his discharge from the custody of the warden of the New Mexico State Penitentiary, contending that he is held under a void commitment.

Charged in Luna County, New Mexico, by two separate informations, in causes numbered 2543 and 2544, with the second degree murder of two persons, petitioner entered a plea of guilty in each case. He asserts a denial of Due Process because of the failure to appoint counsel to represent and advise with him prior to the preliminary examination. Counsel was appointed and the record shows did advise with petitioner extensively before his arraignment in the district court. We find nothing indicating that the failure to assign counsel prior to his preliminary examination prejudiced petitioner's position in any manner in the district court, and such failure therefore does not require vacating the plea of guilty entered in the district court to each information. Sanders v. Cox, 74 N.M. 525, 395 P.2d 353; Latham v. Crouse (CCA 10) 320 F.2d 120; Application of De Toro, D.C., 222 F.Supp. 621.

The record, stipulated in evidence in this proceeding, discloses that not only was petitioner fully advised by appointed counsel, but at the time of his arraignment to the two informations charging second degree murder, the trial court carefully explained petitioner's rights and accepted pleas of guilty in each case after petitioner intelligently, competently and understandingly entered such guilty pleas.

Following the pleas of guilty, petitioner was charged by information in cause numbered 2545 with having been convicted of five felonies and was therefore subject to increased penalties under the Habitual Criminal Act. Under detailed questioning by the court, after consultation with his attorney, petitioner admitted to being the person convicted of the five felonies charged in the habitual criminal information. The court thereupon, in the cause charging violation of the habitual criminal laws, numbered 2545, sentenced him as an habitual criminal to imprisonment in the New Mexico State Penitentiary for the term of his natural life. The commitment under which he is detained was issued in cause numbered 2545, Luna County.

The Habitual Criminal Act, Secs. 41-16-1 to 4, N.M.S.A.1953, does not make the conviction of prior felonies the subject of punishment, as such, as a separate offense. It only provides that proof of the conviction of prior felonies increases the penalty to be imposed upon conviction of a subsequent felony in New Mexico. The amount by which such penalty is required to be increased depends upon the number of prior convictions. The record before us discloses that no judgment or sentence was imposed or entered in either of the murder cases to which petitioner pled guilty (causes numbered 2543 and 2544). It is clear that the sentence imposed upon petitioner in cause numbered 2545, Luna County, and the commitment issued in said cause under which he is being detained by the respondent warden are void.

It does not follow, however, that petitioner must be unconditionally discharged. Acting with the advice of experienced and competent counsel, he entered pleas of guilty to murder in the second degree in cause numbered 2543 and in cause numbered 2544, Luna County. By his pleas of guilty, he has been legally convicted of felonies in each of those cases supra for which no legal judgment has been rendered. Where there has been a legal conviction and the illegality of the restraint consists solely in the invalidity of the sentence, the petitioner may be directly remanded to the proper court or its officers for a valid sentence. Jordan v. Swope, 36 N.M. 84, 8 P.2d 788; State v. Lucero, 48 N.M. 294, 150 P.2d 119.

Petitioner asserts that the first count of the information charging him with being an habitual criminal alleged conviction of the federal offense of transporting a stolen automobile across a state line. We agree that it does not charge conviction of a crime which is a felony under the laws of New Mexico. The conviction of that offense will not support an...