State v. Apache, 8956

• Docket Nº: No. 8956
• Citation: 104 N.M. 290, 1986 NMCA 51, 720 P.2d 709
• Case Date: May 22, 1986
• Court: Court of Appeals of New Mexico

Page 709

720 P.2d 709 104 N.M. 290 STATE of New Mexico, Plaintiff-Appellee,
v.
Albert Davis APACHE, Defendant-Appellant. No. 8956. Court of Appeals of New Mexico. May 22, 1986.

[104 NM 290] Jacquelyn Robins, Chief Public Defender, David Stafford, Appellate Defender, Santa Fe, for defendant-appellant.

Paul G. Bardacke, Atty. Gen., Peter S. Kierst, Ass't Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

MINZNER, Judge.

Defendant appeals from an order revoking the suspension of his sentence, contending that the trial court lacked jurisdiction to revoke his probation. Relying on NMSA 1978, Sections 31-20-8 and 31-21-15(B) (Repl.Pamp.1981), defendant claims he should have been credited for all of the time during which the trial court found him to have been a fugitive. Defendant asks us to hold that Section 31-21-15(C) is not applicable because the determination that he was a fugitive was untimely. Defendant also claims that there is insufficient evidence to support the finding that he was a fugitive. We affirm.

Facts

Defendant pled guilty to commercial burglary and larceny. On January 28, 1983, he was sentenced to twenty-four months imprisonment. The sentence was suspended, and probation was imposed for the twenty-four month period.

The record indicates that defendant violated the conditions of his probation on two occasions. After the first revocation hearing, the trial court continued defendant's probation on the condition that he attend a rehabilitation program in Denver, Colorado

Page 710

[104 NM 291] and on the additional conditions that defendant was not to leave Bernalillo County without court permission, that he was to keep his attorney informed of his whereabouts and of any changes in his work or home address, and that he was to call his probation officer upon his arrival at the rehabilitation center in Denver. Defendant never reported to the rehabilitation center.

Defendant's probation officer, George Drake, testified that he began efforts to locate defendant after he failed to pick up a travel permit necessary for him to go to the rehabilitation center in Denver. Defendant arrived at Drake's office after hours on January 31, 1984, and was told to come back the next day, but failed to do so. Drake called defendant's sister, who lives in Albuquerque and with whom defendant had said he was staying, when he visited Drake's office. Defendant's sister told Drake that defendant was not at her home and that she did not know where he was. Drake next went to an Albuquerque motel, which he believed to be defendant's last known residence, but he was told that defendant was no longer there.

The trial court received a probation violation report dated February 10, 1984. A bench warrant issued February 24, 1984.

A warrant officer for the Albuquerque Police Department testified that he followed standard procedures after he received the warrant. The police department's most recent address for defendant was in Socorro, and a bulletin was sent there. In addition, on February 29, 1984, he listed the warrant for defendant's arrest with the National Crime Information Center. Six months later, having received no response from Socorro authorities, another bulletin was sent there.

Defendant was arrested by the Albuquerque Police on August 21, 1985. At the second probation revocation hearing, defendant admitted violating the terms of his probation.

The trial court found that defendant's term of probation was effectively tolled from February 10, 1984 until August 21, 1985, at which time more than eleven months remained of the term. Defendant was sentenced to imprisonment and credited for presentence confinement and time served...