Mascarenas v. State
| Decision Date | 26 June 1980 |
| Docket Number | Nos. 12872,12895,s. 12872 |
| Citation | 612 P.2d 1317,1980 NMSC 74,94 N.M. 506 |
| Parties | Samuel MASCARENAS, Jr., Petitioner, v. STATE of New Mexico, Respondent, (two cases). Darrell Jean STELLY, Petitioner, v. STATE of New Mexico, Respondent. Harmon Lee ELLIS, Petitioner, v. STATE of New Mexico, Respondent. |
| Court | New Mexico Supreme Court |
Defendants Mascarenas, Stelly and Ellis had appeals pending before the Court of Appeals at the time of their brief escape from the New Mexico State Penitentiary. Upon motion by the State, the court dismissed their appeals. We granted certiorari and now reverse.
Mascarenas was sentenced to the New Mexico State Penitentiary upon conviction for armed robbery and assault upon a police officer. A timely notice of appeal was entered on September 17, 1979.
Stelly was serving time in the penitentiary on a September 9, 1979 conviction for kidnapping, criminal sexual penetration and assault. He timely filed a notice of appeal on September 20, 1979.
Ellis was also in the penitentiary, and had filed a timely notice of appeal on September 19, 1979 from a previous escape conviction.
On or about December 9, 1979, while their appeals were pending, Mascarenas, Stelly and Ellis escaped from the New Mexico State Penitentiary. Mascarenas and Stelly were recaptured on the day after they escaped; Ellis was recaptured on December 20, 1979. On December 11, 1979, after Mascarenas and Stelly had been recaptured, and before Ellis was recaptured, the State filed motions to dismiss the appeals on the grounds that defendants waived their right to appeal by the act of escape. The Court of Appeals granted the motions on December 19, 1979.
The issue we are presented with is whether a prisoner who escapes from custody forfeits the right to any appeal pending at the time of escape regardless of when he is recaptured? Two New Mexico cases have addressed the issue. In Territory v. Trinkhouse, 4 N.M. 300, 13 P. 341 (1887), this Court dismissed the appeal of an escaped prisoner who was apparently still at large at the time the motion was made. In State v. Sanchez, 90 N.M. 61, 559 P.2d 849 (1976), cert. denied, 90 N.M. 254, 561 P.2d 1347 (1977), the Court of Appeals dismissed the appeal of an escaped prisoner who was not recaptured over thirty days after her escape, and was not in custody at the time of the hearing...
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State v. Hentges
...Constitution, which explicitly “provides that an aggrieved party shall have an absolute right to one appeal.” Mascarenas v. State, 94 N.M. 506, 612 P.2d 1317, 1318 (1980). But see State v. Brown, 116 N.M. 705, 866 P.2d 1172, 1175 (App.1993) (dismissing an appeal notwithstanding Mascarenas “......
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State v. Hentges
...Mexico Constitution, which explicitly "provides that an aggrieved party shall have an absolute right to one appeal." Mascarenas v. State, 612 P.2d 1317, 1318 (N.M. 1980). But see State v. Brown, 866 P.2d 1172, 1175 (N.M. Ct. App. 1993) (dismissing an appeal notwithstanding Mascarenas "becau......
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City of Seattle v. Klein
...the FDD because the constitutional right to appeal overrides the doctrine's procedural underpinnings. E.g., Mascarenas v. State, 94 N.M. 506, 612 P.2d 1317, 1318 (1980);12 State v. Tuttle, 713 P.2d 703, 705 (Utah 1985).13 In conclusion, any conflict between waiver and the right to appeal mu......
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State v. Bolding
...determined this right bars dismissal of an appeal on the ground of the defendant's escape or fugitive status. See Mascarenas v. State, 94 N.M. 506, 612 P.2d 1317, 1318 (1980); State v. Tuttle, 713 P.2d 703, 704–05 (Utah 1985); accord Evolga, 519 N.E.2d at 534 (act of escape, by itself, not ......
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A Constitutional Right to an Appeal: Guarding Against Unacceptable Risks of Erroneous Conviction
...P.2d 1098 (1976); Marshall v. State, 344 So. 2d 646 (Fla. Dist. Ct. App.), cert. denied, 353 So. 2d 679 (Fla. 1977); Mascarenas v. State, 94 N.M. 506, 612 P.2d 1317 (1980). But see State v. Brady, 655 P.2d 1132 (Utah 1982) (appeal of escapee that was dismissed prior to his recapture will no......