State v. Baros
| Citation | 1968 NMSC 1,435 P.2d 1005,78 N.M. 623 |
| Decision Date | 08 January 1968 |
| Docket Number | No. 8419,8084,8419 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Robert W. BAROS, Defendant-Appellant. |
| Court | Supreme Court of New Mexico |
This cause was formerly on appeal filed in this court in cause No. 8084, wherein State of New Mexico was plaintiff and Robert W. Baros, appellant here, was defendant. Subsequently, the transcript in cause No. 8419 was filed, being the present appeal.
Appellant was charged with forging a check in cause No. 8084 and entered a plea of guilty. Judgment was entered on August 12, 1964, committing appellant to the New Mexico State Penitentiary for a period of 29 days, and he was 'to stand so committed until said sentence is fully completed and ended.' The trial court further ordered that appellant be placed on probation for two years 'and if he leaves the State he will continue his probation to this State.' Appellant served out this sentence, but on October 19, 1964, a motion to invoke the suspended sentence was filed for the reason that appellant had violated the terms of his suspension. The trial court, on the same day, entered an order invoking the suspended sentence and a new judgment was entered committing appellant to the Penitentiary for a period of not less than two nor more than ten years. Appellant entered upon service of the second sentence.
On May 17, 1965, appellant filed a petition for a writ of habeas corpus in the district court of Santa Fe County. The writ was granted on June 15, 1965, and appellant-petitioner was remanded to the sheriff of Bernalillo County for further proceedings as may be determined by the district attorney and district court of Bernalillo County. Appellant was again sentenced by the district court of Bernalillo County for the same offense on July 1, 1965, which sentence committed appellant to the New Mexico State Penitentiary for a period of two to ten years, with appellant to be given credit for the 29 days served under the first sentence and also credit for the nine months served under the second sentence. Appellant immediately entered upon service under the third sentence.
On September 10, 1965, appellant filed a motion to vacate the third sentence entered on July 1, 1965. The trial court, by order, denied this motion on September 22, 1965. A notice of appeal was filed and the cause was docketed in this court on February 15, 1966, as cause No. 8084. On April 13, 1966, this court dismissed the appeal upon motion of appellant.
On November 3, 1966, appellant filed another motion to vacate the judgment of July 1, 1965, on the basis that having served the first sentence, the sentences imposed thereafter constituted double jeopardy. The trial court, by order, denied this motion on December 14, 1966, and entered an order granting an appeal. On January 27, 1967, a notice of appeal was filed by substituted counsel and an order was also entered the same day directing that the notice of appeal be entered nunc pro tunc as of January 13, 1967.
Appellant contends that, having completely served a valid sentence imposed on August 12, 1964, to serve 29 days in the State Penitentiary, and then placed on probation for two years without the terms of probation being set out, he could not be properly sentenced again for the same offense. Appellant states this was the view of the law which the Santa Fe County district court took when it granted appellant's petition for a writ of habeas corpus.
Appellant cited Ex parte Lange, 85 U.S (18 Wall.) 163, 21 L.Ed. 872, holding that such a procedure would violate the Fifth Amendment. However, the State argues that Lange is not applicable because the sentence imposed in this case was invalid.
In support of the contention that the first sentence was void, the State cites Jordan v. Swope, 36 N.M. 84, 8 P.2d 788; State v. Peters, 69 N.M. 302, 366 P.2d 148; Sneed v. Cox, 74 N.M. 659, 397 P.2d 308. These cited cases are not applicable because they deal with situations in which the prisoner had not fully served the original sentence imposed by the trial court.
The difficulty with the State's position, that the first sentence was void, is that neither the State nor appellant challenged the validity of the first sentence and, since the sentence is within the limits of the penalty provided by law, it did not exceed the trial court's jurisdiction. The State could have sought to modify the claimed void sentence by filing a motion to vacate as being unauthorized by law, as was done in State v. Peters, supra. As the record stands, the district court of Bernalillo County never vacated the first sentence, even when it pronounced its subsequent sentences.
The third sentence, which is the subject of the proceedings out of which this appeal arises, was imposed by the trial court after a writ of habeas corpus had been granted in the District Court of the First Judicial District, which held that appellant's confinement, at all times subsequent to the expiration of the 29-day term, was illegal and unconstitutional. It was on remand, pursuant to the writ of habeas corpus, that appellant was again sentenced on July 1, 1965, for a term of two to ten years, with credit for the 29 days he had served under the first sentence and the nine months served under his second sentence.
The question to be resolved is whether the first sentence imposed on August 12, 1964, was void as contended by the State, or valid as argued by appellant. This court has held that sentences must be imposed as prescribed by statute. State v. Peters, supra. In that case, Peters was sentenced under § 42--1--61, N.M.S.A., 1953 Comp., as amended, which provides that upon conviction the person shall be imprisoned for a term of not less than two years, which sentence shall not run concurrently with any other sentence such person then be serving. Peters was first sentenced to serve not less than two years, said sentence to run concurrently with any other sentences being served by defendant. Thereafter, the State moved to vacate the judgment because the sentence imposed was contrary to law. The trial court vacated the previous sentence and, following a jury trial, the defendant was sentenced to serve not less than two years, which sentence was not to run concurrently with any other sentence defendant may be serving. On appeal, we affirmed, holding that the first sentence, being unauthorized by law, was null and void.
This court has passed upon cases where the sentence imposed was in excess of the term provided by the statute. In Sneed v. Cox, supra, we held that the imposition of a sentence in excess of...
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...decision increasing a valid sentence after it had been imposed. See State v. Verdugo, 79 N.M. 765, 449 P.2d 781 (1969); State v. Baros, 78 N.M. 623, 435 P.2d 1005 (1968). Verdugo and Baros held that the district court is without power to set aside a valid sentence once the defendant has beg......
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State v. Gaddy
...issue, hold that a court has no further jurisdiction over a defendant who has completely served a sentence. See, e.g., State v. Baros, 78 N.M. 623, 435 P.2d 1005 (1968) (cited heavily by the March opinion for this proposition); Reynolds v. Cochran, 138 So.2d 500 (Fla.1962) (defendant comple......
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