State v. Sanchez

Decision Date26 September 1969
Docket NumberNo. 354,354
Citation80 N.M. 688,1969 NMCA 98,459 P.2d 850
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Meliton SANCHEZ, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
Leland Stone, Ruidoso, for defendant-appellant
OPINION

HENDLEY, Judge.

Defendant filed a motion for post-conviction relief pursuant to Rule 93, § 21--1--1(93), N.M.S.A.1953 (Supp.1967). The motion was denied, without hearing, and defendant appeals. We affirm for the reasons hereinafter stated.

Defendant was originally held on an open charge of murder. A preliminary hearing was held on that charge. Subsequently, a new information was filed charging defendant with tampering with evidence, § 40A--22--5, N.M.S.A.1953 (Repl.Vol. 6). Defendant was arraigned on 5 December 1967, and after extensive questioning as to voluntariness, defendant's plea of guilty was accepted on the tampering charge. The murder charge had been dismissed. Sentencing was to await a presentence report.

On 26 December 1967, defendant withdrew his plea of guilty. His court-appointed attorney was permitted to withdraw and new trial counsel appointed.

On 28 December 1967, the State filed an amendment to the information adding the charge of manslaughter. Thereafter, on the same day a Second Amended Information was filed charging involuntary manslaughter. Section 40A--2--3(B), N.M.S.A.1953 (Repl.Vol. 6). Defendant, through his attorney, waived his statutory right to be furnished a copy of this second amended information at least twenty-four hours before being required to plead thereto. Section 41--6--46, N.M.S.A.1953 (Repl.Vol. 6). He also waived a preliminary hearing thereon (one having been previously held on the murder charge). A plea of not guilty was entered. The jury trial was held on 12 January 1968. Defendant was tried and found guilty of involuntary manslaughter. There was no direct appeal.

Defendant contends (a) that he was denied equal justice under the law because his trial counsel did not have time to prepare his case of involuntary manslaughter; (b) that the district attorney's action in changing the nature of the charge from tampering with evidence to involuntary manslaughter was illegal; and (c) that the district attorney's action in changing charges indicates he had no case against defendant.

( a) In light of the pre-trial statements of defendant and his trial counsel, defendant's claim that his trial counsel was was not given time to prepare his case is without merit.

At arraignment defendant's trial counsel stated: '* * * I conferred extensively (with defendant) * * * concerning the details set forth in the Amended Information.' Furthermore, trial counsel assured the court: '* * * but I will state to the Court that counsel and defendant are stating to the Court that there is no necessity for a preliminary hearing. There's no necessity for it, because I will state to the Court that I have reviewed the 136-page transcript of the prior preliminary hearing, and we will waive this in open court * * *'

Trial counsel and defendant then expressly waived the twenty-four hour interval between receipt of information and plea. When trial counsel was informed that the jury trial was set for the 12th of January, his response was: 'The earlier the better, your Honor.' Finally, there is no record of defendant or trial counsel moving the court for a continuance or extension of time.

The record supports the trial court's finding that 'petitioner's Motion and the files and records of the case conclusively show that the petitioner is entitled to no relief.' Thus, the trial court properly denied, without hearing, defendant's contention that his trial counsel did not have time to prepare his case. State v. Lobb, 78 N.M. 735, 437 P.2d 1004 (1968); State v. Sanchez, 78 N.M. 25, 420 P.2d 786 (Ct.App.1966); Rule 93, Rules of Civil Procedure; § 21--1--1(93), N.M.S.A.1953 (Supp.1969).

( b) We construe defendant's claim that the district attorney's action of changing the charge was illegal as going to the legality of the amended information. A distinction is made between 'amendment to an information' and 'an amended information.' State v. Martin, 2 Ariz.App. 510, 410 P.2d 132 (Ct.App.1966); State v. Rogers, 2 Ariz.App. 232, 407 P.2d 773 (Ct.App.1965). This contention involves the latter. Unless prejudice to the defendant results a reviewing court will not disturb the trial court's discretion in permitting an amended information. People v. Moore, 21 Ill.App.2d 9, 157 N.E.2d 94 (Ct.App.1959). Here, trial counsel attacked the first amended information. After this objection the district attorney modified the information. This modification was acceptable to trial counsel who stated: 'I think it has to be amended, Your...

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6 cases
  • Chapin v. Rogers, 334
    • United States
    • Court of Appeals of New Mexico
    • September 26, 1969
    ...... but, like the Missouri rule, no requirement is made in the Illinois rule that the trial court state into the record the reasons for not using the uniform instructions. See 2 Ill.Rev.Stat.1967, ch. ......
  • Miller v. State, 500
    • United States
    • Court of Appeals of New Mexico
    • September 25, 1970
    ...... State v. Garcia, 80 N.M. 21, 450 P.2d 621 (1969); State v. Blackwell, 79 N.M. 230, 441 P.2d 759 (1968); State v. Sanchez, 80 N.M. 688, 459 P.2d 850 (Ct.App.1969); State v. Sedillo,[82 N.M. 70] . Page 464. 79 N.M. 254, 442 P.2d 212 (Ct.App.1968).         The ......
  • State v. Chacon, 15986
    • United States
    • Supreme Court of New Mexico
    • September 20, 1985
    ......Sanchez, 80 N.M. 688, 459 P.2d 850 (Ct.App.1969). In State v. Sanchez, defendant was originally charged with an open charge of murder which was dismissed. ......
  • Jones v. State, 8940
    • United States
    • Supreme Court of New Mexico
    • May 25, 1970
    ......Post conviction proceedings are not a method of obtaining consideration of questions which might have been raised on appeal. State v. Sanchez, 80 N.M. 688, 459 P.2d 850 (Ct.App.1969), and cases there cited.         In Kyle v. United States, 266 F.2d 670 (2d Cir. 1959), cert. denied ......
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