March v. State

• Decision Date: 30 October 1989
• Docket Number: No. 18357,18357
• Citation: 109 N.M. 110,1989 NMSC 65,782 P.2d 82
• Parties: Alfred Wayne MARCH, Petitioner, v. STATE of New Mexico, Respondent.
• Court: New Mexico Supreme Court

Page 82

782 P.2d 82

109 N.M. 110

Alfred Wayne MARCH, Petitioner, v. STATE of New Mexico, Respondent.

No. 18357.

Supreme Court of New Mexico.

Oct. 30, 1989.

Rehearing Denied Nov. 21, 1989.

[109 NM 110] William Ivry, Santa Fe, for petitioner.

Hal Stratton, Atty. Gen., Santa Fe, for respondent.

OPINION

SOSA, Chief Justice.

This case is before us on writ of certiorari to the court of appeals. In a 2-1 decision (No. 10,561, March 16, 1989, Chaves, J., dissenting), the court of appeals affirmed the judgment of the district court finding petitioner, Alfred Wayne March, to be a habitual offender and imposing on him an enhanced sentence. Petitioner contends that the trial court violated his constitutional rights under the Double Jeopardy provisions of the federal and state constitutions, in that he had originally been sentenced for a crime and had begun serving time, when the court increased his sentence for that crime following his successful appeal of the conviction of another crime. Having considered petitioner's contentions, the State's response and the court of appeals' decision, we reverse the court of appeals, and remand the case to the trial court for proceedings not inconsistent with our ruling herein.

The proceedings below began with petitioner's conviction on September 4, 1985 of burglary (Count I) and unlawfully taking of a motor vehicle (Count II). Petitioner's conviction for Count II was affirmed. Petitioner's conviction for Count I was reversed, the case was remanded, and he was convicted a second time. The sentences imposed by the trial court at the time of first conviction were to run consecutively.

After the second conviction on Count I, the State filed a supplemental information alleging that petitioner was a habitual offender, and seeking an enhanced sentence for Count I. The trial court found petitioner to be a habitual offender and increased his sentence for Count I by eight years. Petitioner again appealed his conviction on Count I, and was again successful. The State entered a nolle prosequi on Count I, and filed a second supplemental information alleging that petitioner was a habitual offender and seeking an enhanced sentence on Count II. The court again found that petitioner was a habitual offender and increased the sentence on Count II by eight years.

The court of appeals ruled that because the legislature made it mandatory for the State to seek enhanced sentencing when a convicted felon is a habitual offender (NMSA 1978, Sec. 31-18-19 (Repl.Pamp.1987)), the State was required to pursue enhanced sentencing as to Count II. Therefore, the court of appeals reasoned, proceedings under the second supplemental information were merely an extension of the proceedings under the first supplemental information. The second sentencing enhancement hearing, the court of appeals concluded, was not a trial for Double Jeopardy purposes, but was in effect the same proceeding as the first sentencing enhancement hearing continued into the future. The State, for its part, argues that it originally did not seek enhanced sentencing on Count II merely out of oversight. Nevertheless, the State concedes that, despite the mandatory tone of Section 31-18-19, the prosecutor has discretion to seek or not to seek enhanced sentencing.

It seems clear enough that, while charging a person as an habitual offender is mandatory, a prosecutor has discretion as to when to charge the defendant as an habitual offender so long as the trial court retains jurisdiction over the defendant. Sentencing may violate concepts of double jeopardy if not within objectively reasonable expectations of finality. State v. Cheadle, 106 N.M. 391, 393, 744 P.2d 166, 168 (1987). Here the defendant's objectively reasonable expectation of finality was violated by the State's filing the information as to enhanced sentencing after the defendant's earning of meritorious deductions brought his service of sentence to an end. A defendant's objectively reasonable expectation of finality in sentencing for double jeopardy purposes turns upon NMSA 1978, Section 31-18-19 (Repl.Pamp.1987), which declares it is the duty of the district attorney to bring the habitual offender charge "at any time, either after sentence or conviction." We note that the statute does not say "after serving of sentence."

In State v. Mayberry, 97 N.M. 760, 643 P.2d 629 (Ct.App.1982), it was held that delay in bringing the habitual offender charge until after the defendant's conviction was summarily affirmed by the court of appeals, was not a due process violation, even though the prosecutor knew of the prior felony conviction before his conviction on the subsequent count.

In determining whether there is a point in time when the district attorney may no longer bring an habitual offender charge, we apply the same rationale relied upon in State v. Baros, 78 N.M. 623, 435 P.2d 1005 (1969), in which it was held that the court has authority to correct an irregular sentence at any time prior to when defendant has served his full sentence....