State v. Knight
| Decision Date | 23 October 1967 |
| Docket Number | No. 8439,8439 |
| Citation | 78 N.M. 482,432 P.2d 838,1967 NMSC 241 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Flossie B. KNIGHT, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
OMAN, Judge, Court of Appeals.
Defendant is before this court on an appeal from an order denying her motion filed under Rule 93 (§ 21--1--1(93), N.M.S.A. 1953, (1967 Pocket Supp.). She appeared and testified at the hearing on her motion. The substance of the grounds of her motion is set forth in her points relied upon for reversal, and these points will be disposed of in their order of presentation in the brief in chief.
She was charged, tried and convicted, under the provisions of § 40A--16--11, N.M.S.A. 1953 (Repl. 1964), of having procurred, received and concealed stolen property, knowing the same to have been stolen, and that the value of the said property was over $100.00 but not more than $2,500.00. She was sentenced to confinement in the New Mexico State Penitentiary for a term of not less than one year nor more than five years commencing November 12, 1965.
Her first contention is that she is entitled to have the remainder of her unserved sentence suspended, due to the condition of her health and because her daughter is expecting the birth of a child and needs defendant.
This point was abandoned at the hearing on her motion. Consequently, it is not properly an issue in this court. City of Clovis v. Southwestern Public Service Co., 49 N.M. 270, 161 P.2d 878, 161 A.L.R. 504 (1945). However, the matter of suspension of the remainder of her sentence could not properly be raised in these proceedings. The suspension of execution of a sentence, or any portion thereof, is not a matter of right in the defendant, but is a matter of clemency committed to the discretion of the sentencing court in the criminal proceedings. State v. Serrano, 76 N.M. 655, 417 P.2d 795 (1966). Proceedings under Rule 93 are civil and are not a continuation of the criminal proceedings. State v. Brinkley, 78 N.M. 39, 428 P.2d 13 (1967). Defendant's second contention is that when she was first taken before a justice of the peace on August 10, 1965, she was not informed of the charges against her or or her right to counsel.
She was represented by competent counsel when she was arraigned and pleaded not guilty before the district court on August 19, 1965. Any defect which may have occurred in the manner in which she was informed of the charge against her, or any failure by the justice of the peace to inform her of her right to counsel, was waived. State v. Raburn, 76 N.M. 681, 417 P.2d 813 (1966); State v. Blackwell, 76 N.M. 445, 415 P.2d 563 (1966).
Her third contention is that she was not furnished a copy of the information at least twenty-four hours prior to her arraignment on the charges of which she was convicted, as provided by § 41--6--46, N.M.S.A. 1953. It appears she was furnished a copy of the information prior to her arraignment, but it was some time during the morning of the day on which she was arraigned.
The last sentence of the above-cited section of our statutes expressly provides:
'* * * A failure to furnish such copy shall not affect the validity of any subsequent proceeding against the defendant if he pleads to the indictment or information.'
The second record clearly indicates defendant entered a plea of not guilty. Her statutory right to be furnished a copy of the information at least twenty-four hours prior to being required to plead was one that she could and did waive, and any failure to timely provide her with a copy of the information cannot be collaterally attacked. State v. Vargas, 77 N.M. 764, 427 P.2d 273 (1967).
Her fourth contention is that her automobile and the automobile of another person were illegally searched by the officers at the time of her arrest. However, even if her contentions were true, there is no basis for granting relief from her conviction and sentence, because nothing taken from either automobile was used as evidence against her. State v....
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Walker v. State
...decisions. State v. Gibby, 78 N.M. 414, 432 P.2d 258 (1967); Peterson v. State, 198 Kan. 26, 422 P.2d 567 (1967); State v. Knight, 78 N.M. 482, 432 P.2d 838 (1967); State v. Selgado, 78 N.M. 165, 429 P.2d 363 (1967); Kiser v. State, 196 Kan. 736, 413 P.2d 1002 The second sentence of paragra......
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...Judicial District, supra. Thus, appellant is precluded from attacking his conviction on the grounds of illegal arrest. In State v. Knight, 78 N.M. 482, 432 P.2d 838, defendant contended that her automobile and the automobile of another were illegally searched at the time of her arrest. We h......