State v. Chacon

Decision Date20 September 1985
Docket NumberNo. 15986,15986
Citation706 P.2d 152,103 N.M. 288,1985 NMSC 82
PartiesSTATE of New Mexico, Petitioner, v. Alvino S. CHACON, Respondent.
CourtNew Mexico Supreme Court
OPINION

RIORDAN, Justice.

Alvino Chacon (defendant) was found to be an habitual felon and his basic sentences for two 1983 felony convictions were increased by four years. Defendant appeals the enhancement of his sentence on the basis of NMSA 1978, Crim.P.Rule 37 (Cum.Supp.1984). The Court of Appeals reversed the disposition of the habitual offender proceeding and remanded to the trial court with instructions. We granted certiorari and reverse the Court of Appeals and remand to them for disposition of the other issues raised on appeal.

Defendant was convicted of two felonies on March 30, 1983. On August 10, 1983 defendant was charged by Supplemental Criminal Information with being an habitual offender under NMSA 1978, Section 31-18-17 (Repl.Pamp.1981). The information included four counts--two prior felony convictions in addition to the two 1983 convictions. Defendant was arraigned on this information on September 19, 1983. He pled not guilty and the trial court held the matter in abeyance until further order.

On February 16, 1984, a First Amended Supplemental Criminal Information was filed and four counts were charged. Counts I and II were identical to the first two counts previously charged, Count III added a third prior felony conviction, and Count IV combined the March 30, 1983 convictions. Defendant was arraigned on the amended information on February 24, 1984. On May 11, 1984, defendant was found to be the person convicted in Counts I, III and IV of the First Amended Supplemental Criminal Information, and his 1983 sentences were increased by four years, pursuant to Section 31-18-17(C).

Rule 37 states that an habitual criminal proceeding shall be commenced within six months after the date of arraignment or it shall be dismissed with prejudice. The state had six months from September 19, 1983 to try the defendant under the original supplemental information. Instead, a First Amended Supplemental Criminal Information was filed and defendant was arraigned for a second time. The issue raised here is whether the amended information started the six-month period running anew.

The leading authority is State v. Benally, 99 N.M. 415, 417, 658 P.2d 1142, 1144 (Ct.App.1983) (quoting Salazar v. State, 85 N.M. 372, 373, 512 P.2d 700, 701 (Ct.App.1973)) which states:

An "amended" information vitiates the original information as fully as though it had been formally dismissed by order of the court. It constitutes the filing of a new instrument which supersedes its predecessor.

The court in State v. Benally distinguished an "amended" information from an "amendment to information" which means "a supplement to an otherwise effective and sufficient information * * * " State v. Benally, 99 N.M. at 417, 658 P.2d at 1144 (quoting State v. Martin, 2 Ariz.App. 510, 514, 410 P.2d 132, 136 (1966)). Thus, the narrowed question in this case is whether the change in form and the addition of one conviction to an habitual criminal charge constitutes an "amended information" or an "amendment to information."

The amended supplemental information involved Section 31-18-17(D), whereas the previous supplemental information involved Section 31-18-17(C). Two different subsections are involved, and an additional prior felony conviction was charged. Adding another prior felony allegation substantially changes the possible sentence increase from four years to eight. Although the nature of the offenses are the same, the change in the possible sentence increase distinguishes the First Supplemental Criminal Information as an "amended information" rather than an "amendment to information." Defendant was arraigned twice, treating the amended information as a new instrument which would supercede the previous information.

This Court considered a Rule 37 challenge to an habitual criminal charge in State v. Lopez, 89 N.M. 82, 547 P.2d 565 (1976). However, the supplemental informations filed were identical. The court stated that Rule 37 applied to the first date and not the date on the supplemental information and noted that no new or different information had been added to the second filing. That is not the case here. Defendant points out the potential abuse which could result from starting the six-month period anew with the filing of an amended information. This issue is addressed in State v. Benally, which states that it must be dealt with on a case-by-case basis. Four factors are to be considered in determining whether defendant has been denied the right to a speedy trial. These are length of delay, reason for delay, defendant's assertion of right, and ensuing prejudice to the defendant. State v. McCrary, 100 N.M. 671, 674, 675 P.2d 120, 123 (1984); State v. Santillanes, 98 N.M. 448, 450, 649 P.2d 516, 518 (Ct.App.1982); State v. Tafoya, 91 N.M. 121, 123, 570 P.2d 1148, 1150 (Ct.App.1977). Defendant was originally arraigned on September 19, 1983 and was finally brought to trial on May 11, 1984. An eight-month delay alone does not indicate that the First Amended Supplemental Information was filed in bad faith or with the intent to circumvent Rule 37.

It appears that the amended information was sufficiently different to start the six-month period running anew. A different subsection of the habitual offender statute was involved, an additional prior conviction was alleged, and defendant was properly arraigned after the amended supplemental information was filed. He then was brought to trial within three months.

We uphold the trial court's ruling as being within the time limits of Rule 37 and remand to the Court of Appeals for disposition of the other issues raised on appeal.

FEDERICE, C.J., and STOWERS and WALTERS, JJ., concur.

SOSA, Senior Justice, dissenting and adopting Court of Appeals opinion as his dissent.

SOSA, Senior Justice, dissenting.

No. 7890

COURT OF APPEALS OF NEW MEXICO

June 27, 1985

MEMORANDUM OPINION

HENDLEY, Judge.

Defendant was found to be a habitual offender with two prior convictions and his basic sentence was enhanced by four years pursuant to NMSA 1978, Section 31-18-17(C) (Cum.Supp.1984). His first issue on appeal, the failure to bring him to trial within the six-month period required by NMSA 1978, Crim.P.Rule 37 (Cum.Supp.1984), is dispositive and we reverse.

On March 30, 1983, defendant was convicted of aggravated burglary and of larceny of property valued at over $2,500. He was sentenced to a basic term of nine years plus two years of parole on the aggravated burglary charge, and to a basic term of three years plus two years of parole on the larceny charge. The sentences are to be served concurrently. On August 10, 1983, the state filed a supplemental criminal information containing four counts: a 1968 conviction of receiving stolen property, a 1974 conviction of burglary, and the two 1983 convictions. Defendant was arraigned on this information on September 19, 1983. The state then filed a motion to amend the supplemental criminal information to add new and different charges. The amendment was filed on February 16, 1984. The pleading, entitled "First Amended Supplemental Criminal Information," also contained four counts: (I) the 1968 conviction (the date was changed to 1967 on the day of trial), (II) the 1974 conviction, (III) a 1981 conviction of receiving stolen property, and (IV) the two 1983 convictions. Defendant was arraigned on the amended supplemental information on February 24, 1984. Trial was held on May 11, 1984. The court found defendant was the same person charged in counts I, III, and IV, and enhanced his sentences by four years. Prior to trial, defendant moved to dismiss the information on several grounds, including a violation of the six-month rule contained in Crim.P.Rule 37. The motion was denied.

Rule 37 provides that trial of a habitual criminal proceeding shall be commenced within six months of whichever of seven enumerated events occurs latest. The applicable event in this case is defendant's arraignment. Crim.P.R. 37(b)(1). We discuss whether the state was required to bring defendant to trial within six months of (1) September 19, 1983, the date of arraignment on the supplemental information; or (2) February 24, 1984, the date of arraignment on the first amended supplemental information. When the trial of any person does not commence within the six-month period and any extensions, the information filed against such person shall be dismissed with prejudice. Crim.P.R. 37(d).

This issue was considered in State v. Benally, 99 N.M. 415, 658 P.2d 1142 (Ct.App.1983). In that case, a criminal complaint was filed on November 25, 1981, charging aggravated battery by use of a motor vehicle. An undated notation amended the complaint to charge homicide by vehicle. On December 21, 1981, a criminal information was filed charging great bodily injury by vehicle. The state filed an amended criminal information on April 21, 1982, charging aggravated assault and assault with a deadly weapon. In holding that the district court erred in dismissing the amended information on the basis of the running of the six-month period, this Court distinguished between an amended information and an amendment to an information. " 'An "amended" information vitiates the original information as fully as though it had been formally dismissed by order of the court. * * * It constitutes the filing of a new instrument which supersedes its predecessor.' " " '[A]n "amendment to an information" * * * mean[s] a...

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6 cases
  • State v. Med. Eagle
    • United States
    • South Dakota Supreme Court
    • August 7, 2013
    ...has applied this same rule in the context of informations filed for purposes of habitual offender proceedings. See State v. Chacon, 103 N.M. 288, 706 P.2d 152 (1985). Specifically, in State v. Chacon, the New Mexico Supreme Court recognized that “[a]n ‘amended’ information vitiates the orig......
  • State v. Mendoza, 18273
    • United States
    • New Mexico Supreme Court
    • May 31, 1989
    ...four factors are to be considered in determining whether a defendant has been denied the right to a speedy trial. State v. Chacon, 103 N.M. 288, 289, 706 P.2d 152, 153 (1985). These are length of delay, reason for delay, defendant's assertation of his right, and ensuing prejudice to the def......
  • State v. Valdez, 11392
    • United States
    • Court of Appeals of New Mexico
    • February 13, 1990
    ...of CR-88-245, CR-88-246, and CR-88-129, was adding additional charges to the original magistrate court complaint. See State v. Chacon, 103 N.M. 288, 706 P.2d 152 (1985); State v. Lucero; State v. Benally, 99 N.M. 415, 658 P.2d 1142 We need not resolve that dispute. Rule 5-604(B)(4) provides......
  • State v. Cale
    • United States
    • Court of Appeals of New Mexico
    • August 17, 2011
    ...our Supreme Court considered whether an amended district court information started the six-month period running anew. 103N.M. 288, 289, 706 P.2d 152, 153 (1985). The defendant was convicted of two felonies. Id. at 288, 706 P.2d at 152. Just over four months later, he was charged by suppleme......
  • Request a trial to view additional results

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