Newman v. Rodriguez, 9070.

Decision Date04 April 1967
Docket NumberNo. 9070.,9070.
Citation375 F.2d 712
PartiesA. R. NEWMAN, Appellant, v. Felix RODRIGUEZ, Acting Warden, New Mexico State Penitentiary, Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Charles S. Solomon, Santa Fe, N. M., for appellant.

L. D. Harris, Special Asst. Atty. Gen., Albuquerque, N. M. (Boston E. Witt, Atty. Gen., Santa Fe, N. M., with him on the brief), for appellee.

Before PICKETT and SETH, Circuit Judges, and BROWN, United States District Judge.

WESLEY E. BROWN, District Judge.

The petitioner, A. R. Newman, appeals from the denial of his application for a writ of habeas corpus by the United States District Court for the District of New Mexico. A single question of law is presented. Is the State of New Mexico required under the equal protection clause of the United States Constitution to give credit for time served on a void sentence upon reconviction following a new trial?

On December 2, 1963, Newman, without counsel, pleaded guilty to obtaining money by fraud, and was sentenced to 1 to 5 years. On June 8, 1964, he was ordered released in a state habeas proceeding, on the ground that his guilty plea was invalid. On August 27, 1964, now represented by counsel, he pleaded not guilty to the same charge. He was convicted by a jury, and was sentenced again to 1 to 5 years, and denied credit for the time served under the first conviction. If given credit for the nearly nine months he served between the two convictions, he would be entitled to immediate release. According to his brief, if he does not receive credit, he is tentatively scheduled to be released at the expiration of his sentence on April 1, 1967.

After the second conviction, Newman brought a second habeas action in the state court, alleging that he had been put in double jeopardy, and seeking in the alternative, credit for the previous time served. The state supreme court rejected both contentions. He then filed the petition herein, raising the same questions. After a hearing, at which he testified, the United States District Court held, first, that retrial following a successful habeas proceeding does not constitute double jeopardy, and secondly, that under the New Mexico decisions, credit need not be given for time served on the first sentence. He complains of only this second holding in this court.

Newman contends that failure to give credit for the time served under a void sentence when the defendant is retried and convicted, and given a new sentence, violates the equal protection clause of both the New Mexico and United States Constitutions. The equal protection argument is based on the fact that New Mexico allows credit for time served where the trial itself is valid, but the sentence alone is erroneous, but refuses credit where the trial itself is constitutionally defective, although the sentence is correct. He states the issue thus:

"Why should two defendants be treated differently when the only difference in the circumstance is the presence in one case of an error unrelated to the sentence and in the other an error in the sentencing?"

In Sneed v. Cox, 74 N.M. 659, 397 P.2d 308, a habeas case, the petitioner had been sentenced on December 10, 1962, to a term of not less than two nor more than three years. The statute, 1953 Comp. § 40-17-4, provided only for "imprisonment at hard labor, not exceeding three years." The sentence was set aside, and he was resentenced on June 25, 1964, to a term "not exceeding three years," the unlawful minimum having been deleted from the sentence. The question was then raised whether he was entitled to credit for time served under the erroneous 1962 sentence. The New Mexico court held that he was, quoting from In the Matter of the Application of Cica, et al., for a Writ of Habeas Corpus, 18 N.M. 452, 137 P. 598, 51 L.R.A.,N.S., 373:

"Where a court has jurisdiction of the person and the offense, the imposition of a sentence in excess of what the law permits does not render the legal or authorized portion of the sentence void, but only leaves such portion in excess open to question and attack."

And further,

"A sentence is legal so far as it is within the provisions of law and the jurisdiction of the court over the person and the offense, and only void as to the excess, when such excess is separable and may be dealt with without disturbing the
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15 cases
  • North Carolina v. Pearce Simpson v. Rice
    • United States
    • United States Supreme Court
    • June 23, 1969
    ...Cir.); United States v. White, 382 F.2d 445 (C.A.7th Cir.); Walsh v. United States, 374 F.2d 421 (C.A.9th Cir.); Newman v. Rodriguez, 375 F.2d 712 (C.A.10th Cir.). The state courts have also been far from unanimous. Although most of the States seem either not to have considered the problem,......
  • State of Texas v. Grundstrom
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 25, 1968
    ...251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919) supports its position. The State also relies on the Tenth Circuit cases of Newman v. Rodriguez, 375 F.2d 712 (10 Cir. 1967) and Boggs v. Raines, 273 F.2d 636 (10 Cir. 1959) as well as Hayes v. United States, 102 U.S.App.D.C. 1, 249 F.2d 516 Afte......
  • State v. Stafford, 495
    • United States
    • United States State Supreme Court of North Carolina
    • December 9, 1968
    ...v. State, 239 Miss. 874, 125 So.2d 923, 85 A.L.R.2d 481 (1961); State v. Young, 200 Kan. 20, 434 P.2d 820 (1967). (In Newman v. Rodriquez, 375 F.2d 712 (10th Cir. 1967), it was held that upon reconviction following a new trial the state of New Mexico was not required to give credit for time......
  • Kelly v. State of North Carolina
    • United States
    • U.S. District Court — Eastern District of North Carolina
    • October 19, 1967
    ......Patton v. State of North Carolina, supra. Contra, Newman v. Rodriquez, 375 F.2d 712 (10th Cir., 1967); United States ex rel. Watson v. Commonwealth and ......
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