State v. Charlton

• Decision Date: 24 November 1992
• Docket Number: No. 14070,14070
• Citation: 846 P.2d 341,1992 NMCA 124,115 N.M. 35
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Samuel Clayton CHARLTON, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 341

846 P.2d 341

115 N.M. 35

STATE of New Mexico, Plaintiff-Appellee, v. Samuel Clayton CHARLTON, Defendant-Appellant.

No. 14070.

Court of Appeals of New Mexico.

Nov. 24, 1992.

Certiorari Denied Jan. 6, 1993.

[115 N.M. 36] Tom Udall, Atty. Gen., Katherine Zinn, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender, Susan Gibbs, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

MINZNER, Judge.

Defendant appeals from a judgment entered after a jury trial in which he was convicted of aggravated assault and failure to appear. He raises the following issues on appeal: (1) whether there was sufficient evidence to support his conviction for aggravated assault; (2) whether the trial court exceeded its authority when it ordered Defendant banished from New Mexico; (3) whether double jeopardy prohibits the trial court from increasing Defendant's sentence after he began to serve his initial sentence; (4) whether double jeopardy prohibits the trial court from enhancing Defendant's sentence for aggravated assault (assault with a deadly weapon) with the firearm enhancement; and (5) whether the trial court committed fundamental error when it failed to instruct the jury pursuant to SCRA 1986, 14-6013.

The second calendar notice proposed to reverse Defendant's sentence and remand for entry of an amended judgment and sentence and to affirm on all other issues. Defendant has filed a timely memorandum in opposition to the proposed summary affirmance and in support of the proposed reversal and remand; the State has indicated its intention not to oppose the proposed reversal and remand. For the following reasons, we affirm Defendant's convictions, but reverse the judgment and sentence from which he appeals and remand for entry of an amended judgment and sentence.

FACTS

We adopt the statement of facts in Defendant's docketing statement because they are not challenged by the State. See State v. Calanche, 91 N.M. 390, 574 P.2d 1018 (Ct.App.1978). Defendant operated a gas station in rural Hidalgo County. On January 25, 1990, the victim, Sammy Martinez, stopped at the station. While Martinez was there, an elderly couple drove their car into the station and told Defendant they were having car trouble. Defendant and Martinez, who happened to be a mechanic, looked under the hood to try to ascertain the problem. Both Martinez and Defendant determined that the couple could safely drive the car.

There is some dispute regarding what happened after the two men looked at the car. Eventually, however, an argument ensued and Defendant took a gun out of his back pocket, pointed it at Martinez's head, and threatened to kill him.

The trial court's original judgment, entered on May 26, 1992, sentenced Defendant to eighteen months imprisonment plus one year of parole for aggravated assault eighteen months imprisonment plus one year of parole for his failure to appear in court, and one year for committing a noncapital felony with a firearm, for a total commitment of four years. The court suspended all but one year of Defendant's sentence and committed Defendant to the Hidalgo County Jail to serve his sentence. The court additionally ordered "that upon release from the Hidalgo County Jail, the defendant shall leave the State of New Mexico and shall not return to the State of New Mexico without prior permission for [sic] the Court." (Emphasis in original.)

On June 22, 1992, while Defendant was serving the above-mentioned sentence, the trial court amended its judgment. There was only one change between the original and amended judgments, to wit, the trial court added a term of three years probation to be served by Defendant upon completion of his prison sentence.

SUFFICIENCY OF EVIDENCE

Defendant first claims that the State failed to prove his guilt of the charge of aggravated assault beyond a reasonable doubt. This claim lacks merit. Martinez testified that while he was at Defendant's gas station, Defendant took a gun out of his back pocket, pointed it at Martinez's head, and threatened to kill him. This was evidence from which the jury could find beyond a reasonable doubt that Defendant committed aggravated assault with a deadly weapon.

Defendant further argues that because his trial attorney did not prepare the docketing statement, his case should have been assigned to the general calendar. Defendant admits, however, that his trial attorney and the attorney who prepared the docketing statement discussed the facts of his case as they are related in the docketing statement. He also admits that at least one of his attorneys partially reviewed the taped transcript of the trial. Defendant does not contend that there are any relevant facts of which this court is not aware. We are therefore not persuaded that placing this case on the general calendar would affect this court's decision. Defendant's suggestion that the statement of facts in the docketing statement may be deficient does not justify a general calendar assignment. See State v. Hadley, 108 N.M. 255, 258-59, 771 P.2d 188, 191-92 (Ct.App.1989) (this court may make a determination of the sufficiency of the evidence on summary disposition if the facts of the docketing statement clearly establish the sufficiency of the evidence), overruled on other grounds by State v. Bedolla, 111 N.M. 448, 806 P.2d 588 (Ct.App.1991). Accepting the facts in the docketing statement as true, see Calanche, 91 N.M. at 392, 574 P.2d at 1020, we conclude there was sufficient evidence to support the conviction for aggravated assault.

BANISHMENT

The trial court ordered that Defendant be banished from the State of New Mexico when he finished serving his prison term. Defendant argues that banishment is an inappropriate punishment because the district court has no authority to banish and that banishment is contrary to New Mexico public policy. We agree.

Whether a criminal defendant can be banished from the State of New Mexico is a question of first impression. District courts only have that sentencing authority granted by the legislature. State v. Sparks, 102 N.M. 317, 324, 694 P.2d 1382, 1389 (Ct.App.1985); State v. Crespin, 96 N.M. 640, 643, 633 P.2d 1238, 1241 (Ct.App.1981). The New Mexico criminal code does not specifically authorize the banishment of criminal defendants from the state. The legislature's refusal to authorize banishment as a sentencing option is evidence that banishment is contrary to the public policy of this state. Further, in the only New Mexico case considering the question of banishment, this court assumed that a trial court lacked the authority to banish a defendant, even if the defendant agreed to be banished. State v. Gibson, 96 N.M. 742, 634 P.2d 1294 (Ct.App.1981).

When a judge conditions a defendant's sentence upon refraining from being present in a specific location which is directly related to the offense, such as a bar or school, such conditions generally have been upheld. Neil P. Cohen & James J. Gobert, The Law of Probation and Parole Sec. 6.23, at 261 (1983); Caroll J. Miller, Annotation, Propriety of Conditioning Probation on Defendant's Not Entering Specified Geographical Area, 28 A.L.R. 4th 725 (1984). When the trial court orders a defendant to leave a broad geographical region, often characterized as banishment, appellate courts have routinely invalidated this condition. See, e.g., Henry v. State, 276 S.C. 515, 280 S.E.2d 536 (1981); Almond v. State, 350 So.2d 810 (Fla.Dist.Ct.App.1977). But see Cobb v. State, 437 So.2d 1218 (Miss.1983). Some courts have justified this on the ground that general banishment can have no rehabilitative role in modern penology. Johnson v. State, 672 S.W.2d 621 (Tex.App.1984); State ex rel. Halverson v. Young, 278 Minn. 381, 154 N.W.2d 699 (1967); see also Gerald R. Miller, Note, Banishment--A Medieval Tactic in Modern Criminal Law, 5 Utah L.Rev. 365 (1957). Other courts have found it violates public policy. See, e.g., State v. Doughtie, 237 N.C. 368, 74 S.E.2d 922 (1953).

Banishment "would tend to incite dissension, provoke retaliation, and disturb that fundamental equality of political rights among the several states which is the basis of the Union itself." People v. Baum, 251 Mich. 187, 231 N.W. 95, 96 (1930). "To permit one state to dump its convict criminals into another is not in the interests of safety and welfare; therefore, the punishment by banishment to another state is prohibited by public policy." Rutherford v. Blankenship, 468 F.Supp. 1357, 1360 (W.D.Va.1979). For these reasons, it has been said that where the legislature has not authorized banishment, "it is impliedly prohibited by public policy." Id. (citing Baum). Because we decide that banishment is contrary to public policy, we need not reach Defendant's argument that the sentence imposed violated his constitutional right to travel. We hold that the district court exceeded its authority when it banished Defendant from the state.

We note that in invalidating the portion of Defendant's sentence banishing him from the state, we do not invalidate all of Defendant's original sentence. When a trial court imposes one valid and one invalid sentence, this court will sever the sentences if possible in order to give effect to the valid sentence. State v. Henry Don S., 109 N.M. 777, 779, 790 P.2d 1058, 1060 (Ct.App.1990). In this case, the portion of Defendant's sentence regarding banishment is severable from the rest of Defendant's sentence.

AMENDED JUDGMENT AND SENTENCE

The original judgment and sentence filed on May 26, 1992 suspended all but one year of Defendant's sentence, which he immediately began to serve. On June 22, 1992, the trial court filed an amended judgment increasing Defendant's sentence by adding a three-year term of probation. Defendant argues that the trial court violated the prohibition against double jeopardy when it increased his sentence. We agree.

Once a trial court imposes a valid...