State v. Harris

Citation1984 NMCA 3,677 P.2d 625,101 N.M. 12
Decision Date10 January 1984
Docket NumberNo. 7152,7152
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Muni Fred HARRIS, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
Janet E. Clow, Chief Public Defender, David Stafford, Asst. Appellate Defender, Santa Fe, for defendant-appellant

WOOD, Judge.

Sentenced as an habitual offender, defendant appeals. We discuss: (1) jurisdiction to impose the enhanced sentence; (2) initiation of the habitual offender proceedings; (3) validity of the prior convictions; (4) propriety of the enhanced sentence under the New Mexico statutes; and (5) constitutional validity of the enhanced sentence.


Jury verdicts on June 23, 1982, found defendant guilty of two counts of burglary and two counts of larceny. A supplemental information was filed on July 26, 1982, charging defendant as an habitual offender. The trial court sentence for the burglaries and larcenies was filed December 1, 1982. Defendant's notice of appeal from the burglary and larceny convictions was filed November 29, 1982. See NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R. 202(a) (Repl.Pamp.1983). In December 1982 and January 1983, there were proceedings pursuant to the supplemental information. On March 25, 1983, an amended judgment was entered which enhanced defendant's sentence as an habitual offender. Defendant's appeal involves the habitual offender proceedings.

This Court affirmed the burglary and larceny convictions by a memorandum opinion in State v. Harris, (Ct.App.) No. 6053, filed August 16, 1983. Defendant contends the trial court lacked jurisdiction to "modify" the sentence filed December 1, 1982, while his appeal in Ct.App. No. 6053 was pending. Thus, he asserts the sentence in the amended judgment of March 25, 1983, is a nullity because the trial court lacked jurisdiction to impose that sentence.

We held contrary to defendant's contention in State v. Lujan, 90 N.M. 778, 568 P.2d 614 (Ct.App.1977). Defendant asserts that Lujan is no longer controlling. He relies on NMSA 1978, Crim.P.R. 57.1 (Repl.Pamp.1980), adopted in 1980, and State v. Garcia, 99 N.M. 466, 659 P.2d 918 (Ct.App.1983). This reliance is misplaced.

Crim.P.R. 57.1 reads:

(a) Correction of sentence. The district court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.

(b) Modification of sentence. The district court may reduce a sentence within thirty days after the sentence is imposed, or within thirty days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within thirty days after entry of any order or judgment of the appellate court denying review of, or having the effect of upholding, a judgment of conviction. The district court may also reduce a sentence upon revocation of probation as provided by law. Changing a sentence from a sentence of incarceration to a sentence of probation shall constitute a permissible reduction of sentence under this subdivision.

Garcia involved the general rule as to trial court jurisdiction during the pendency of a direct appeal of a conviction. Crim.P.R. 57.1(b) applies to a modification of a sentence by reducing the sentence. Neither the general rule nor Crim.P.R. 57.1(b) deprives the trial court of jurisdiction to sentence an habitual offender.

Crim.P.R. 57.1(a) authorizes a district court to correct an illegal sentence at any time. Compare NMSA 1978, Secs. 31-18-19 (Repl.Pamp.1981) and 31-18-20(C) (Cum.Supp.1983). A sentence that is not authorized is an illegal sentence. See Sneed v. Cox, 74 N.M. 659, 397 P.2d 308 (1964); State v. Lucero, 48 N.M. 294, 150 P.2d 119 (1944). Once it was determined that defendant was an habitual offender, the previous sentence for the burglaries and larcenies was no longer an authorized sentence because supplanted by the enhanced sentence mandated for an habitual offender. Lott v. Cox, 76 N.M. 76, 412 P.2d 249 (1966); State v. Gonzales, 84 N.M. 275, 502 P.2d 300 (Ct.App.1972). The trial court could correct the unauthorized sentence by imposing the sentence required for an habitual offender.

The trial court had jurisdiction to sentence defendant as an habitual offender during the pendency of defendant's appeal of the burglary and larceny convictions.

Should the general rule as to divestiture of trial court jurisdiction be considered as applicable to habitual offender proceedings, the trial court had jurisdiction to sentence defendant as an habitual offender. Under the general rule, the trial court has jurisdiction to rule on a motion to modify a sentence if the motion was pending at the time the appeal was taken. State v. White, 71 N.M. 342, 378 P.2d 379 (1962). In this case the supplemental information was, in effect, a motion to modify the first sentence and impose the sentence mandated for an habitual offender. The supplemental information was filed before the notice of appeal was filed.

Initiation of the Habitual Offender Proceedings

(a) The indictment charging the burglaries and larcenies did not mention a possible habitual offender proceeding. Disregarding New Mexico decisions, defendant contends that the failure to give him "notice, at the time of trial on the felonies, that the State would seek to enhance his sentence as an habitual offender" was a denial of due process. He asserts that due process "requires that any habitual offender allegation be made at the time of the primary charges." The failure to give notice, in the indictment, of possible habitual offender proceedings was not a denial of due process. State v. Stout, 96 N.M. 29, 627 P.2d 871 (1981); see State v. Santillanes, 96 N.M. 477, 632 P.2d 354 (1981); State v. Mayberry, 97 N.M. 760, 643 P.2d 629 (Ct.App.1982).

(b) Defendant was charged as an habitual offender by a supplemental information. He contends the supplemental information was invalid because it did not charge a crime. His argument is: (1) habitual offender proceedings do not involve a new offense, only the penalty for a conviction, see Lott v. Cox; and (2) an information must charge a crime, see NMSA 1978, Crim.P.R. 5(c) (Repl.Pamp.1980) and State v. Ardovino, 55 N.M. 161, 228 P.2d 947 (1951). Defendant overlooks Section 31-18-19 which provides for an information charging a person as an habitual offender. Lott v. Cox refers to this as a recidivist information. The supplemental information alleging that defendant was an habitual offender was a valid charge.

(c) The supplemental information itemized four counts. The first three counts alleged prior felonies. The fourth count alleged that defendant "was found guilty of having committed four felonies (two felony larcenies and two burglaries) on or about the 28th day of October, 1981, by a Third Judicial District Jury." The supplemental information gave defendant notice that defendant was a person who had incurred three prior felony convictions. See NMSA 1978, Sec. 31-18-17(D) (Cum.Supp.1983). Defendant recognizes that the three prior felony convictions provided the basis for enhancing his sentence.

His claim is that the fourth count gave him notice that only "one count of enhancement was sought"; that is, a "single enhancement". On the basis that the supplemental information did not state that the three prior felony convictions were to be used to enhance each of the four felonies identified in the fourth count, defendant claims that an enhanced sentence as an habitual offender could be imposed for only one of the four felonies. In support of this argument, he cites State v. Peke, 70 N.M. 108, 371 P.2d 226 (1962) and State v. Gurule, 90 N.M. 87, 559 P.2d 1214 (Ct.App.1977), which discuss duplicity in criminal pleading. Neither case supports defendant.

Duplicity in criminal pleading is the joinder of two or more distinct and separate offenses in the same count. State v. Peke. The fourth count was not duplicitous because that count was not a joinder of offenses. See NMSA 1978, Crim.P.R. 10 (Repl.Pamp.1980). It is not a joinder of offenses because a recidivist information does not charge a criminal offense. State v. Silva, 78 N.M. 286, 430 P.2d 783 (Ct.App.1967).

The supplemental information was not defective for failing to state, in a separate count for each of the current felonies, that the sentence for each particular felony should be enhanced on the basis of the three prior felony convictions. Each of the four current felonies was identified in the fourth count. The supplemental information alleged generally that defendant was an habitual offender because of three prior felonies. Defendant was given adequate notice, in the supplemental information, that the habitual offender provisions applied to each of the four current felonies. See State v. Silva. This contention is also answered by the absence of any showing of prejudice to defendant by the wording of the fourth count. NMSA 1978, Crim.P.R. 7(d) (Repl.Pamp.1980); State v. Peke.

Validity of the Prior Convictions

The prior felony convictions were: (1) burglary, in Florida, in 1968; (2) attempted escape, in Florida, in 1969; and (3) rape, in Arizona, in 1972. Defendant contends that the two felony convictions in Florida may not be used to enhance his sentence as an habitual offender because they are constitutionally invalid. See State v. Dawson, 91 N.M. 70, 570 P.2d 608 (Ct.App.1977).

(a) Voluntariness of the two guilty pleas in Florida.

The two felony convictions in Florida were based on his pleas of guilty. Defendant contends his guilty pleas were involuntary because not knowingly and intelligently entered.

1) Defendant points out that in neither Florida proceeding was he informed of specific constitutional rights he would waive by a guilty plea. He seems to contend that his pleas cannot be valid because of the lack of specific...

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