State v. Rivera

• Decision Date: 13 February 2003
• Docket Number: No. 22,453.,22,453.
• Citation: 66 P.3d 344,133 N.M. 571,2003 NMCA 59
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ignacio RIVERA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

66 P.3d 344

133 N.M. 571

2003 NMCA 59

STATE of New Mexico, Plaintiff-Appellee, v. Ignacio RIVERA, Defendant-Appellant.

No. 22,453.

Court of Appeals of New Mexico.

February 13, 2003.

Certiorari Granted April 1, 2003.

Patricia A. Madrid, Attorney General, Santa Fe, NM, Joel Jacobsen, Assistant Attorney General, Albuquerque, NM, for Appellee.

John B. Bigelow, Chief Public Defender, Will O'Connell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Granted, No. 27,952, April 1, 2003.

OPINION

KENNEDY, Judge.

{1} Ignacio Rivera (Defendant) appeals the revocation of his probation by the district court. His sole argument on appeal is that while the appeal of his conviction was pending in this Court, the district court had no jurisdiction to revoke his probation. We reverse the revocation of Defendant's probation holding that the judgment is not in effect during the pendency of Defendant's appeal. State v. Ramirez, 76 N.M. 72, 76, 412 P.2d 246, 249 (1966). We further clarify our ruling in State v. Cordova, 100 N.M. 643, 647-48, 674 P.2d 533, 537-38 (Ct.App.1983), which held that an appeal of a criminal conviction stays the execution of the sentence imposed, including the operation of conditions of probation. In this case the revocation proceedings were initiated after Defendant's conviction was on appeal and the execution of the sentence stayed. In the absence of an appeal bond and conditions of release, the district court was left in this case with no coercive power over Defendant's actions pending the resolution of his appeal.

FACTUAL AND PROCEDURAL BACKGROUND

{2} Defendant was convicted by a jury of a number of crimes. The court entered a judgment and sentence on August 15, 2000, sentencing Defendant to six years in prison less one day. It then suspended the sentence and placed him on probation for five years.

{3} Following sentencing, on September 6, 2000, the district court released and exonerated the property bond that had been posted on Defendant's behalf. Defendant filed a notice to appeal his conviction on September 13, 2000. No appeal bond was set by the court at this or any time. Defendant was arrested September 30, 2000, while the appeal was pending, for numerous criminal charges arising from a DWI investigation.

{4} On October 3, 2000, after Defendant's arrest and more than two weeks after the appeal was filed, the district court filed an order of probation submitted by the Department of Corrections which was overseeing Defendant's probation. Among numerous conditions in the order was one forbidding Defendant to consume alcoholic beverages, and another specifying that Defendant was not to violate any of the laws or ordinances of the State of New Mexico.

{5} On December 19, 2000, the State petitioned the district court to revoke Defendant's probation based on his violation of the two conditions of probation specifically from the October order mentioned above. The court on December 20, 2000, issued a bench warrant for Defendant's arrest that carried a $25,000 bond. Defendant was arrested on January 3, 2001, and arraigned on January 8, 2001. He denied violating his probation. There is nothing in the record indicating that the bond was posted or that Defendant was ever released until he was sentenced on the probation violation.

{6} At a hearing on March 5, 2001, Defendant admitted to violating his probation. The court accepted the admission and announced that it would schedule a sentencing hearing at a later date. On March 29, 2001, this Court issued a mandate to the district court, attaching a copy of its memorandum opinion affirming Defendant's conviction.

{7} On April 18, 2001, Defendant moved to dismiss the State's petition to revoke his probation on the grounds that the district court had no jurisdiction to hear the petition while the appeal of his conviction was pending in this Court. The State filed a written response requesting that the district court deny Defendant's motion. On June 4, 2001, the district court held a hearing on the motion to dismiss and subsequently denied the motion. Based on Defendant's admission at the March 5, 2001, hearing, the district court revoked Defendant's probation on June 26, 2001, and reinstated him to probation with additional requirements of intensive probation. Defendant appeals the denial of his motion to dismiss and the subsequent revocation of his probation.

DISCUSSION

{8} Defendant raises only one issue on appeal—that the district court had no jurisdiction to act upon the State's petition to revoke his probation while his conviction was on appeal. Whether the district court has jurisdiction over the subject matter of a case is a question of law that we review de novo. Ottino v. Ottino, 2001-NMCA-012, ¶ 6, 130 N.M. 168, 21 P.3d 37; see also State v. Carrasco, 1997-NMCA-123, ¶ 6, 124 N.M. 320, 950 P.2d 293 (applying de novo review to question of district court's jurisdiction to enter an unsatisfactory discharge from probation after appeal filed).

Section 31-11-1(A) Stays the Execution of a Sentence While the Underlying Conviction is on Appeal

{9} Defendant correctly asserts that because an appeal of his sentence was pending in this Court, the district court, under NMSA 1978, § 31-11-1(A) (1988), was divested of jurisdiction to hold a hearing on the State's petition to revoke his probation or to accept his admission that he had violated the terms of his probation. Jurisdiction over the subject matter of a case is an issue that can be raised at any time by a criminal defendant. State v. Begay, 105 N.M. 498, 499, 734 P.2d 278, 279 (Ct.App.1987). We must dismiss the district court's order of revocation if it had no jurisdiction to issue such an order. See N.M. Dep't of Health v. Compton, 2000-NMCA-078, ¶ 12, 129 N.M. 474, 10 P.3d 153 ("If the statutory requirement is jurisdictional, outright dismissal is the proper remedy because the court is effectively divested of jurisdiction. If, however, the statutory requirement is mandatory but not jurisdictional, the proper analysis for dismissal is whether ... Respondent [was prejudiced.]" (citation omitted)).

{10} Our courts have long held that the district court is divested of jurisdiction during the pendency of an appeal "except for purpose of perfecting appeal and passing on pending motions." Carrasco, 1997-NMCA-123, ¶ 6,124 N.M. 320,950 P.2d 293 (citing State ex rel. Bell v. Hansen Lumber Co., 86 N.M. 312, 313, 523 P.2d 810, 811 (1974)) (holding that the district court had no jurisdiction to hear defendant's motion to modify a restitution order and the terms of her probation while the appeal of the underlying conviction was pending); State v. Garcia, 99 N.M. 466, 470, 659 P.2d 918, 922 (1983) (holding that the district court is without jurisdiction to enter a judgment and sentence during the pendency of an interlocutory appeal); State v. White, 71 N.M. 342, 346, 378 P.2d 379, 382 (1962) (holding that the trial court has no jurisdiction to modify a criminal sentence while an appeal is pending).

{11} This jurisdictional rule is grounded not only in our case law and court rules, but also in statute. Section 31-11-1(A) states that "[a]ll appeals and writs of error in criminal cases have the effect of a stay of execution of the sentence of the district court until the decision of the supreme court or court of appeals." It appears that our courts have interpreted the purpose of Section 31-11-1(A) to be that of protecting a defendant who is appealing a conviction from a potentially undeserved sentence. Our courts have interpreted the language of this statute literally: "Until the final disposition of the case on appeal, the judgment is not in effect." State v. Ramirez, 76 N.M. 72, 76, 412 P.2d 246, 249 (1966).¹ Once an appeal is filed, the district court is divested of jurisdiction to impose, modify or enforce a sentence.

{12} In an early case, our Supreme Court held that under Section 31-11-1(A), a convicted felon could not be sent to the penitentiary, but rather was to remain in the county jail pending appeal. Parks v. Hughes, 24 N.M. 421, 424, 174 P. 425, 425 (1918). More recently, in State v. Cordova, 100 N.M. 643, 674 P.2d 533 (Ct.App.1983), this Court concluded that during the pendency of the appeal, the defendant was under no obligation, except perhaps a moral obligation, to comply with a condition of probation requiring him to pay restitution. Id. at 648, 674 P.2d at 538. Similarly, in this case, the operation of the conditions of probation was stayed with the stay of execution of the sentence.

{13} In cases such as State v. Padilla, 106 N.M. 420, 744 P.2d 548 (Ct.App.1987), and Carrasco, the nature of the probation imposed following conviction, and not the underlying conviction itself was at issue. Padilla was serving his sentence and appealed from the revocation of probation he had not yet begun. Id. at 421, 744 P.2d at 549. While the district court could modify his sentence at any time after "entry of judgment and prior to the expiration of the sentence," Padilla does not address our situation where the judgment itself is on appeal. Id. at 422, 744 P.2d at 550. Again, where the judgment is on appeal, Cordova is clear that the only obligation to conditions of probation is "moral," not legal. Cordova, 100 N.M. at 648, 674 P.2d at 538.

{14} The State's reliance on Subsections 31-11-1(B), (C), and (D) shows no mastery of the facts: the district court in this case made no findings concerning release pending appeal as these subsections require it to do. (We note that the State does not rely on Subsection E for any proposition and we do not address it in this appeal.) Subsections (B), (C), and (D) do not affect the stay itself, but only delineate conditions of release pending appeal if a bond is set. See § 31-11-1(B), (C), and (D). The court must focus its attempts to force behavioral norms outside the context of Defendant's sentence once appealed. Ramirez makes it plain that the...