State v. Acuna
| Decision Date | 06 August 1985 |
| Docket Number | No. 8238,8238 |
| Citation | 103 N.M. 279,1985 NMCA 83,705 P.2d 685 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Joe ACUNA, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Defendant appeals from an amended judgment and sentence, which contains a period of parole in accordance with NMSA 1978, Section 31-21-10(C) (Cum.Supp.1984) and NMSA 1978, Section 31-18-15(C) (Repl.Pamp.1981). This appeal presents the issue of the trial court's jurisdiction to correct an invalid judgment after it has been served in accordance with its express terms. Other issues raised in the docketing statement but not briefed are deemed abandoned. State v. Henderson, 100 N.M. 260, 669 P.2d 736 (Ct.App.1983). We affirm.
Defendant was convicted, pursuant to a plea and disposition agreement and a guilty plea, of voluntary manslaughter and unlawful taking of a motor vehicle, and as a habitual offender. He was sentenced in June 1982 to three years for voluntary manslaughter and eighteen months for the unlawful taking of a motor vehicle, the sentences to run concurrently. Each of the two sentences was enhanced by one year for the habitual offender conviction, the enhancements to run concurrently with each other, but consecutively to the original sentences.
In May 1984 defendant accepted a certificate of parole and agreed to its conditions. Defendant was released from the penitentiary on June 1, 1984.
On motion by the state, and after notice and a hearing, the district court entered an amended judgment and sentence in December 1984. The amended judgment provided that the sentence of three years for voluntary manslaughter would be followed by "a mandatory two-year period of parole," and that the period of eighteen months for unlawful taking of a vehicle would be followed by "a mandatory one-year period of parole." The judgment further provided that "[t]he total period of incarceration * * * shall be a total of four (4) years, to be followed by a total period of two years on parole." Counsel for defendant initially agreed to the amended judgment but later withdrew consent.
On appeal defendant first contends the amended judgment is an illegal enhancement of a prior sentence. We disagree. The sentence that the trial court is authorized to enter for a noncapital felony has two elements: a basic sentence of imprisonment and the relevant mandatory parole period. See Sec. 31-18-15(C); State v. Johnson, 94 N.M. 636, 614 P.2d 1085 (Ct.App.1980). Because the June 1982 judgment lacked the required provision for parole, it was an invalid sentence. State v. Aguilar, 98 N.M. 510, 650 P.2d 32 (Ct.App.1982). Although a court that has entered a valid initial judgment and imposed sentence on a defendant may not enhance the sentence by increasing the penalty at a later date, State v. Castillo, 94 N.M. 352, 610 P.2d 756 (Ct.App.1980), an invalid sentence may be corrected by the imposition of a proper sentence, even though the defendant has begun to serve the original sentence, see State v. Aguilar, and even if the proper sentence is more onerous, see State v. Peters, 69 N.M. 302, 366 P.2d 148 (1961). The principle that a sentence cannot be enhanced after it has commenced is not applicable. Garcia v. United States, 492 F.2d 395 (10th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct. 178, 42 L.Ed.2d 142 (1974). See also United States v. Thomas, 356 F.Supp. 173 (E.D.N.Y.1972) ().
Defendant argues, alternatively, that the trial court lacked jurisdiction over him because he had fully served the terms of the prior judgment. Consequently, defendant urges us to hold that the trial court lacked jurisdiction to resentence him. See Davis v. Wainwright, 408 So.2d 824 (Fla.App.1982); Palmer v. State, 182 So.2d 625 (Fla.App.1966). The state contends that the court had the power to correct the sentence in this case, because defendant was still serving his sentence when the error was identified and corrected. The state urges us to adopt a rule that permits the sentence to be vacated as void, and a correct sentence entered, because the mandatory period of parole had not expired. See Llerena v. United States, 508 F.2d 78 (5th Cir.1975).
Although our cases have recognized that a sentence fully served terminates the trial court's jurisdiction to resentence, see State v. Baros, 78 N.M. 623, 435 P.2d 1005 (1968), the question of whether the same principle applies to an invalid sentence is one of first impression. See Williams v. State, 81 N.M. 605, 471 P.2d 175 (1970); State v. Aguilar. We need not decide that question on these facts.
The sentencing authority expressly provides that the statutory period of parole is part of the sentence. Section 31-18-15(C). Furthermore, the Probation and Parole Act, NMSA 1978, Sections 31-21-3 to -19 (Repl.Pamp.1981 and Cum.Supp.1984), provides for parole "by operation of law." Section 31-21-5(B); see Sec. 31-21-10(C). The Act, by its express terms, requires a defendant to serve specific periods of parole. Section 31-21-10(C). During this time, the defendant remains in the legal custody of the institution. Section 31-21-10(D). Similarly, unless the defendant agrees to parole supervision, he remains in the physical custody of the institution. Id.
Defendant entered into a parole agreement that satisfied the legislative mandate. See Section 31-21-10(C) (). At the time ...
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State v. Charlton
......Castillo, 94 N.M. 352, 355, 610 P.2d 756, 759 (Ct.App.1980). Probation is not a mandatory aspect of sentencing in New Mexico, and therefore the failure to impose a term of probation does not invalidate the sentence. State v. Soria, 82 N.M. 509, 484 P.2d 351 (Ct.App.1971); cf. State v. Acuna, 103 N.M. 279, 705 P.2d 685 (Ct.App.1985) (because failure of trial court to impose parole, which is a mandatory addition to a sentence, invalidates the sentence, parole may be added after imposition of original sentence). The trial court was without authority to increase Defendant's sentence to ......
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