State v. Edwards

• Decision Date: 26 June 1984
• Docket Number: No. 7622,7622
• Citation: 696 P.2d 1006,1984 NMCA 70,102 N.M. 413
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Billy EDWARDS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1006

696 P.2d 1006

102 N.M. 413

STATE of New Mexico, Plaintiff-Appellee, v. Billy EDWARDS, Defendant-Appellant.

No. 7622.

Court of Appeals of New Mexico.

June 26, 1984.

Certiorari Quashed March 6, 1985.

Paul Bardacke, Atty. Gen., Bill Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee

Holly A. Hart, Public Defender Dept., Santa Fe, for defendant-appellant.

OPINION

MINZNER, Judge.

Defendant was originally convicted of five counts of practicing law without a license in violation of NMSA 1978, Section 36-2-28, in the Grant County Magistrate Court. The five counts were based upon the filing of five different pleadings on different dates but in the same action. Defendant appealed the convictions to the Luna County District Court, where he was again convicted of five counts of practicing without a license. A penalty of imprisonment not to exceed six months and a fine of up to $500 are provided by statute.

The Judgment and Sentence was filed and imposed on April 7, 1982. Defendant was sentenced to varying amounts of jail time for each conviction, totalling twenty months. The court ordered the defendant to serve six months, suspended fourteen months of the sentences, and ordered that defendant be placed on probation for that period. The court imposed two conditions on the probation:

(1) that "defendant shall receive psychotherapy, if available, as directed by the Area Human Resources Council, Inc. [AHRC]," and

(2) that defendant shall cease to practice law in any form.

No appeal was taken from the Judgment and Sentence.

Defendant completed his jail term in August 1982 and began serving probation. The State filed a Petition to Revoke Probation in June 1983, charging that defendant had violated the conditions of his probation. Following hearing, the district court found that defendant had violated both conditions of probation and directed that defendant serve three months additional jail time and pay the fine of $500 pursuant to the original Judgment and Sentence.

On appeal, defendant presents two issues. First, he argues that the five counts of practicing law without a license represented one offense under the statute and, consequently, he could be convicted of only one count. Therefore, he asserts, on revocation of probation the district court could not require that he serve additional jail time because he had already served six months, the maximum sentence for one offense authorized by the statute. Second, defendant argues that there was insufficient evidence that he violated either of the conditions of probation. Issues raised in the docketing statement but not briefed are abandoned. State v. Vogenthaler, 89 N.M. 150, 548 P.2d 112 (Ct.App.1976).

We reverse the trial court with respect to the first issue. Because of our disposition of this issue, we do not reach defendant's second argument on appeal. First we discuss the possibility that defendant waived the issue of double jeopardy. Then we address the question of whether, on these facts, the legislature intended to authorize punishment for more than one offense.

WAIVER

The State contends that defendant waived his right to raise the issue of whether the five counts represented one offense. The State relies on the fact that on appeal defendant has argued only that the offenses should be merged as a matter of policy, rather than as a question of double jeopardy. The State concludes that defendant failed to preserve error as required when raising a non-jurisdictional error.

NMSA 1978, Section 30-1-10 provides, in relevant part: "No person shall be twice put in jeopardy for the same crime. The defense of double jeopardy may not be waived and may be raised by the accused at any stage of a criminal prosecution, either before or after judgment." Defendant argues that the State has split one criminal offense into five separate prosecutions and his convictions are not authorized by the legislature under NMSA 1978, Section 36-2-28. This argument amounts to a defense of double jeopardy under Section 30-1-10 which the defendant may raise for the first time on this appeal. See State v. Brecheisen, 101 N.M. 38, 677 P.2d 1074 (Ct.App.1984).

As our supreme court stated in State v. Ellenberger, 96 N.M. 287, 629 P.2d 1216 (1981):

The doctrine of merger is based upon the constitutional guarantee against double jeopardy contained in the Fifth Amendment of the United States Constitution and Article II, Section 15 of the New Mexico Constitution. The scope of the double jeopardy clause was outlined by the Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969):

That guarantee [against double jeopardy] has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. (Footnotes omitted and emphasis added.)

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We note, however, that this question is primarily one of legislative intent. Multiple punishments run afoul of the double jeopardy clause only where the Legislature has not authorized multiple punishments. See United States v. DiFrancesco, , 101 S.Ct. 426, 66 L.Ed.2d 328 (1980); Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874). Mr. Justice Blackmun, concurring in Whalen, 445 U.S. at 697, 100 S.Ct. at 1441, stated, "[t]he only function the Double Jeopardy Clause serves in cases challenging multiple punishments is to prevent the prosecutor from bringing more charges, and the sentencing court from imposing greater punishments, than the Legislative Branch intended." Since the question turns on the intent of the Legislature, the "same evidence" and "necessarily involved" tests previously utilized by this Court are not constitutional litmus tests, but are merely aids for determining legislative intent.

96 N.M. at 289-90, 629 P.2d at 1218-19.

In this case we are concerned with multiple punishments for the same offense and the legislative intent with respect to the crime of unauthorized practice of law. If the legislature, in Section 36-2-28, did not authorize separate convictions and sentences for filing each pleading, then the district court's order that defendant serve additional jail time subjects the defendant to multiple punishments for a single offense. This case, in our judgment, poses unique facts which raise the possibility of multiple prosecutions for a single offense which we consider as a matter of sound judicial policy and as a matter of constitutional right. This is precisely the type of action against which the double jeopardy clause was designed to protect. State v. Ellenberger.

It would be particularly inappropriate to find that this defendant had waived his right to raise a claim of double jeopardy. During the original magistrate court proceedings, defendant filed a motion to discharge and replace his court-appointed attorney. Within that pleading, defendant himself raised the double jeopardy issue to the magistrate court. Subsequently, defendant was assigned another attorney. Apparently neither appointed attorney pursued the double jeopardy issue, although the record on appeal includes a copy of defendant's pro se motion, which was filed in district court in the course of the proceedings on appeal from magistrate court.

SINGLE OFFENSE OR MULTIPLE OFFENSES

We next address the issue of whether the legislature intended that this defendant be subject to five convictions for the unauthorized practice of law where each conviction was based solely on the filing of a separate pleading in the same district court action. Section 36-2-28 provides:

If any person shall, without having been duly licensed to practice, * * * practice or assume to act or hold himself out to the public as a person qualified to practice or carry on the calling of a lawyer, he shall be guilty of an offense under this act [36-2-2, 36-2-4 to 36-2-9, 36-2-25, 36-2-26, 36-2-28 NMSA 1978], and on conviction thereof be fined not to exceed five hundred dollars [$500], or be imprisoned, for a period not to exceed six months, or both.

Defendant's double jeopardy claim requires us to determine what constitutes "an offense" under this statute.

Few, if any, limitations are imposed by the Double Jeopardy Clause on the legislative power to define offenses. Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978). Once the legislature has defined a statutory offense by its prescription of the "allowable unit of prosecution," that prescription determines the scope of protection afforded by a prior conviction or acquittal. Id. Whether a particular course of conduct involves one or more distinct "offenses" under the statute depends on the...