State v. Santillanes, 4528

• Decision Date: 25 March 1980
• Docket Number: No. 4528,4528
• Citation: 96 N.M. 482,1980 NMCA 183,632 P.2d 359
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Frank SANTILLANES, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 359

632 P.2d 359

96 N.M. 482

STATE of New Mexico, Plaintiff-Appellant, v. Frank SANTILLANES, Defendant-Appellee.

No. 4528.

Court of Appeals of New Mexico.

March 25, 1980.

Opinion on Certification Dec. 16, 1980.

Jeff Bingaman, Atty. Gen., Sammy Lawrence Pacheco, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant

John L. Walker, William D. Teel, Teel & Walker, P. A., Albuquerque, for defendant-appellee.

MEMORANDUM

HENDLEY, Judge.

The State appeals from an order of the district court striking the enhancement clause from the indictment and "the enhancement proceeding is dismissed with prejudice." We proposed summary affirmance of the Court's order on the basis that the notice required under the Controlled substances Act for enhancement had not been provided to the defendant. § 30-31-20(B), N.M.S.A. 1978; State v. Rhodes, 76 N.M. 177, 413 P.2d 214 (1966); State v. Garduno, 93 N.M. 335, 600 P.2d 281 (1979). Except for the assertion of State's counsel that oral notice was given the defendant, there is no indication in the record that notice was given by "some pleading filed by the State, whether by motion or otherwise" that enhancement would be sought. On its face, the indictment provides no such notice. Compare State v. Garduno, supra.

It is our conclusion, therefore, that the trial court, in effect, was striking the State's oral assertion that it would seek enhancement in that proceeding. Due to the lack of notice discussed above, the trial court was correct in so ruling.

State v. Rhodes, supra recognized that a comparison and application of the procedure mandated by the Habitual Criminal Act to the Narcotic Drug Act is unjustified due to the specific legislative directives provided in the former act and which direction is lacking in the latter act. See § 31-18-7, N.M.S.A. 1978 (repealed July 1, 1979); § 31-18-20, N.M.S.A. 1978 (Supp.1979); State v. Soliz, 79 N.M. 263, 442 P.2d 575 (1968); Lott v. Lox, 76 N.M. 76, 412 P.2d 249 (1965). Nonetheless, Rhodes held that notice and opportunity to be heard before an increased penalty could be imposed were required as a matter of fundamental fairness due process. Rhodes thus states the minimum requirement. By legislative enactment, additional requirements are mandated by the Habitual Criminal Act. Rhodes does not Therefore, we hold that the State may file a supplemental information charging a second violation of the Controlled Substances Act against a defendant, subsequent to the defendant's conviction on the second. Therefore, only that aspect of the trial court's order striking the enhancement provision "with prejudice" is reversed.

preclude the State from following such additional procedures when prosecuting a "second" drug offense. See State v. Chavez, 79 N.M. 741, 449 P.2d 343 (Ct.App.1968).

IT IS SO ORDERED.

LOPEZ and WALTERS, JJ., concur.

OPINION ON CERTIFICATION

WALTERS, Judge.

Two questions in this matter are certified to us by the Supreme Court which granted certiorari to defendant when we denied his motion for rehearing. Those questions are:

1. Whether the state had the right to appeal the decision of a trial court's striking any enhancement of sentence with prejudice after the trial court had sentenced the petitioner for the current charges in the indictment;

2. Whether the Court of Appeals erred in holding that the double jeopardy clause of the New Mexico Constitution and the United States Constitution did not preclude the state from filing a supplemental information charging a second violation of the Controlled Substances Act after petitioner had already been sentenced by the trial court for the original charges contained in the indictment.

This certification arose from our memorandum opinion of March 25, 1980, affirming the trial court's striking of the enhancement clause from the indictment. We reversed that portion of the court's order which struck the clause "with prejudice" and held that the State could file a supplemental information charging a second violation of the Controlled Substances Act, under which enhancement could be sought.

We respond to the two questions certified, in order.

I.

Article VI, § 2 of the New Mexico Constitution, before amendment in 1965 read:

The appellate jurisdiction of the Supreme Court shall be co-extensive with the state, and shall extend to all final judgments and decisions of the district courts, and said court shall have such appellate jurisdiction of interlocutory orders and decisions of the district courts as may be conferred by law.

The section was wholly amended in 1965, and since then has read:

Appeals from a judgment of the district court imposing a sentence of death or life imprisonment shall be taken directly to the Supreme Court. In all other cases, criminal and civil, the Supreme Court shall exercise appellate jurisdiction as may be provided by law; provided that an aggrieved party shall have an absolute right to one appeal.

Defendant argues that the State is limited to the type of criminal appeals specifically set out in § 39-3-3 B, N.M.S.A.1978, which provides:

B. By the state. In any criminal proceeding in district court an appeal may be taken by the state to the supreme court or court of appeals, as appellate jurisdiction may be vested by law in these courts.

1) within thirty days from a decision, judgment or order dismissing a complaint, indictment or information as to any one or more counts;

(2) within ten days from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property, if the district attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.

It is true that forerunners of the present statute provided that the state should "only" be allowed an appeal for alleged errors similar to those in the current statute. See §§ 4517, 4519, 1915 Code (1907 N.M.Laws, ch. 57, § 48); § 42-1503, N.M.S.A.1941; § 41-15-3, N.M.S.A.1953, repealed by 1966 N.M.Laws, ch. 28, § 65. In 1966 the legislature enacted § 21-10-2.1 B, N.M.S.A.1953 (1966 N.M.Laws, ch. 28, § 36), which restated the several instances in which the State could appeal a criminal matter, but omitted the word "only" in the new act. In 1972, the section was again repealed, and a new § 21-10-2.1 B, N.M.S.A.1953, which is now § 39-3-3 in the 1978 compilation, was enacted under 1972 N.M.Laws ch. 71, § 2. Again the word "only" was left out. Thus, cases decided before 1965 when the constitution was amended, or 1966 when the statute omitted "only," are not pertinent to the question of the State's right to appeal criminal matters in 1980.

In 1969 the Supreme Court held that the State had no right to seek review, by certiorari, of the Court of Appeals' reversal of a criminal conviction. It reasoned that an appeal by the State to the Supreme Court, after a criminal trial, was not included in the provisions of § 21-10-2.1, supra, and that the State "should not be permitted to accomplish by certiorari what it cannot do by appeal." State v. Paul, 80 N.M. 746, 747, 461 P.2d 228 (1969). That result accorded with earlier New Mexico precedent, decided under the earlier statutes and constitutional provision we have referred to. See State v. Ashcraft, 32 N.M. 209, 252 P. 1001 (1927); State v. Dallas, 22 N.M. 392, 163 P. 252 (1917); Ex parte Carrillo, 22 N.M. 149, 158 P. 800 (1916); State v. Chacon, 19 N.M. 456, 145 P. 125 (1914).

However, in 1973 State v. Paul, supra, was overruled to the extent that it prohibited the State from seeking, and the court from granting, a writ of certiorari to review the Court of Appeals' decision in a criminal case, if other certiorari requirements of § 34-5-14, N.M.S.A.1978 (then § 16-7-14, N.M.S.A.1953), were met. State v. Gunzelman, 85 N.M. 295, 512 P.2d 55 (1973). Gunzelman further held that the Supreme Court's "original jurisdiction to issue writs of certiorari, as provided for in art. VI, § 3 ... leaves no doubt as to the power of the Court to issue such writs." (85 N.M. at 299, 512 P.2d 55)

Certain language of Gunzelman, supra, seems to imply that the State's right to appeal a criminal matter in the first instance is restricted to those circumstances provided in § 39-3-3, supra:

"... (T)here is no reason to assume that the legislature, in limiting the State's right to appeal in a criminal case, intended a like limitation in the granting of a writ of certiorari." (Emphasis added.) (85 N.M. at 298, 512 P.2d 55)

We note, however, that the question in Gunzelman was not concerned with whether the State's right to bring an appeal in a criminal matter was restricted, but whether the State could request and obtain certiorari from a decision of the Court of Appeals in a criminal appeal. Thus, the emphasized language may have been inadvertent. We note further that the constitutional provision of art. VI, § 2, was referred to only in the context of the Supreme Court's appellate jurisdiction "as may be provided by law"; the last sentence of the section granting to an aggrieved party an "absolute" right to one appeal was not discussed. Nor was there any reason to discuss it within the compass of the matter decided in Gunzelman. But we are now squarely faced with this issue by the first question certified to us by the Supreme Court.

We have just recently decided, in State v. Doe and Doe, 95 N.M. 90, 619 P.2d 194 (1980), that "(t)he state is aggrieved by a disposition contrary to law and may properly challenge such a disposition on appeal." A disposition contrary to law is exactly what the State has alleged in this appeal from the trial court's order striking the enhancement clause in the indictment, and dismissing, with prejudice, the enhancement proceeding against defendant.

In Doe and Doe, supra, we relied on the portion of § 32-1-39(A) of the Children's Code, N.M.S.A.1978, which provides that "(a)ny party may appeal from a judgment of ...