State v. Frost
Decision Date | 14 November 2002 |
Docket Number | No. 21,890.,21,890. |
Citation | 133 N.M. 45,60 P.3d 492 |
Parties | STATE of New Mexico, Plaintiff-Appellant, v. Terry FROST, Defendant-Appellee. |
Court | Court of Appeals of New Mexico |
Patricia A. Madrid, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, NM, for Appellant.
Phyllis H. Subin, Chief Public Defender, Nina Lalevic, Assistant Appellate Defender, Santa Fe, NM, for Appellee.
Certiorari Denied, No. 27,803, December 19, 2002.
{1} The State appeals the trial court's order authorizing Defendant to serve the last four months of his six-month mandatory "jail term" as a DWI repeat offender in an electronic monitoring program (EMP) administered by the Chaves County Detention Center (CCDC). Based on the statutory authority for inmate release programs at local jails and our holding in State v. Guillen, 2001-NMCA-079, ¶ 11, 130 N.M. 803, 32 P.3d 812, we affirm.
{2} Defendant entered a nolo contendre plea to fourth-degree felony driving while intoxicated (DWI) under NMSA 1978, § 66-8-102(G) (1999). The trial court sentenced Defendant to eighteen-months imprisonment, suspended twelve months of the sentence, and ordered the twelve-month suspended sentence to be served on probation. Neither party contends that there was any illegality in the original judgment and sentence entered by the court. For medical reasons, Defendant began serving his probation immediately. Defendant violated the terms of his probation, his probation was revoked, and he was placed in the CCDC in August 2000 to begin serving the last four months of his six-month jail term.
{3} Defendant pled guilty to violating his probation, and during the hearing on his sentencing, Defendant asked the trial court to allow him to serve the remainder of his jail term in the CCDC EMP. Motivated by the fact of Defendant's medical condition which "posed an unreasonable burden on the county if he continues to be in the confinement," the court agreed with Defendant's request. The trial court ordered that Defendant "may serve" his sentence in the EMP under the supervision and control of the CCDC "if deemed appropriate by the Jail Administrator" with the condition that Defendant reside with his daughter Betty and be supervised by either of his two daughters at all times. The trial court determined that, because the EMP would be administered by the detention center, Defendant was in the "custody" of the detention center for purposes of satisfying his six-month "jail term."
{4} The State objected to the sentencing order prepared by Defendant. At the presentment hearing, the State argued that the DWI statute is one of a small number of statutes that mandate jail time and that participation in the EMP would not meet the requirements of a mandatory six-month "jail term" imposed by Section 66-8-102(G). The trial court disagreed with the State, and the order was entered.
{5} Section 66-8-102(G) relates to DWI convictions and states as follows:
Upon a fourth or subsequent conviction under this section, an offender is guilty of a fourth degree felony, as provided in Section 31-18-15 NMSA 1978, and shall be sentenced to a jail term of not less than six months, which shall not be suspended or deferred or taken under advisement. (Emphasis added.)
{6} The issue of whether the trial court's sentence satisfied the requirement of a six-month jail term for a felony DWI offender presents us with a question of statutory interpretation that this Court reviews de novo. See State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995)
(); State v. Perez, 2002-NMCA-040, ¶ 10, 132 N.M. 84, 44 P.3d 530 ( ).
{7} On appeal, the State makes two main arguments: (1) the legislature did not authorize trial courts to allow felony DWI offenders to serve their mandatory six-month "jail term" anywhere other than jail; and (2) the actual program to which Defendant was admitted is not a statutorily authorized alternative to the "jail term" required by Section 66-8-102(G). Defendant argues that the State failed to preserve the issue of statutory authorization. We will first address the preservation issue, and then turn to the State's contentions.
44 P.3d 530 ( ). Consequently, we will review the State's arguments.
{9} Defendant was sentenced to the CCDC. The CCDC is the equivalent of a county jail, so Defendant was sentenced to jail. See State v. Brown, 1999-NMSC-004, ¶ 9, 126 N.M. 642, 974 P.2d 136
(. ) While the trial court concluded that the CCDC EMP "would be a reasonable alternative to satisfy the mandatory sentence in this matter," the State contends that time in the CCDC EMP is not equivalent to "jail time" as contemplated by Section 66-8-102(G).
{10} Relying on State v. Hovey, 87 N.M. 398, 399, 534 P.2d 777, 778 (Ct.App.1975), the State argues that a trial court's power to impose a particular sentence is limited by the legislature and that the legislature has not authorized trial courts to substitute confinement at home for the mandatory "jail term." In making its argument, the State comprehensively lists the statutory limitations applicable to felony DWI sentences. The mandatory minimum six-month jail term portion of the sentence cannot be (1) reduced to anything less than six months; (2) deferred or suspended; or (3) taken under advisement. Section 66-8-102(G). Further, this sentence is not subject to conditional discharge, NMSA 1978, § 31-20-13(C) (1994), nor can good-time credit be given. NMSA 1978, § 33-3-9(B) (1995). Essentially, the State contends that the absence of express statutory language authorizing DWI jail terms to be satisfied by home confinement, as well as the many limitations put on felony DWI sentences, support its position that the legislature did not authorize a jail term to be served by means of anything less than actual confinement within a jail, and not including an EMP. We disagree.
{11} To evaluate the State's position, we must look to the definition of confinement and how sentences are served. Two statutes require a trial court to give credit for time spent in confinement. NMSA 1978, § 31-20-11 (1977) allows credit to convicted felons for time in confinement pending appeal, and NMSA 1978, § 31-20-12 (1977) allows presentence confinement credit for persons charged with a felony.
{12} During Defendant's appeal, this Court issued its decision in Guillen which held that under Section 31-20-12, defendants convicted of a fourth or subsequent DWI offense may receive pre-sentence credit for time spent while under house arrest in an EMP. The EMP constituted "official confinement" within the meaning of Section 31-20-12. Guillen, 2001-NMCA-079, ¶ 11,130 N.M. 803,32 P.3d 812. Since pre-sentence confinement in an EMP qualifies under Section 31-20-12 for credit toward the mandatory six-month jail term imposed by Section 66-8-102(G), it follows that post-sentence confinement in the same EMP can be credited toward the same mandatory jail term for repeat DWI offenders. See also State v. Martinez, 1998-NMSC-023, ¶ 10, 126 N.M. 39, 966 P.2d 747
(. )
While Fellhauer and Guillen do not address the precise issue of whether official confinement in a program such as the CCDC EMP is the same as serving a "jail term" for purposes of Section 66-8-102(G), the holding in both cases appears dispositive.
{14} The language in Section 31-20-11, entitling Defendant to credit for time served in "confinement" while awaiting the outcome of his appeal, is almost...
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