State v. Sedillo
| Decision Date | 01 April 1968 |
| Docket Number | No. 8492,8492 |
| Citation | 79 N.M. 9,439 P.2d 226,1968 NMSC 49 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Lorenzo SEDILLO, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
The appellant, a juvenile, was convicted of the crime of rape and sentenced to serve a term in the state penitentiary of not less than one year nor more than ninety-nine years. Subsequently, he was discharged on a writ of habeas corpus because his parents had not been cited into court at his hearing, the court holding that the sentence was void for failure to obtain jurisdiction of the juvenile. He was taken into custody and, at a retrial, was again found guilty and a like sentence was imposed. He now appeals from an order of the district court in a post-conviction proceeding under Rule 93, § 21--1--1(93), N.M.S.A.1953, denying credit for the time served under the void conviction.
The main question is whether the order denying credit for the time served is an infringement of appellant's constitutional rights. The question is disposed of by our own cases. We are committed to the rule that an accused is not entitled to credit for time served under a prior void conviction. State v. Rhodes, 77 N.M. 536, 425 P.2d 47; Morgan v. Cox, 75 N.M. 472, 406 P.2d 347. See, also, State v. Padilla, (Ct.App.) 78 N.M. 702, 437 P.2d 163. Compare Lewis v. Commonwealth, 329 Mass. 445, 108 N.E.2d 922. Our decisions are supported by a great weight of authority. See Annot. 35 A.L.R.2d 1283.
Appellant argues that we should overturn our decisions since our public policy is expressed by Ch. 221, Laws 1967, § 40A--29--24, N.M.S.A.1953, Pocket Supp.1967, which reads:
'A person convicted of a felony in the district court and held in official confinement while awaiting the outcome of an appeal, writ of error to, or writ of certiorari from, a state or federal appellate court, or prior to his release as a result of post-conviction proceedings or habeas corpus, shall be given credit for the period spent in confinement against any sentence finally imposed for that offense.'
The trouble with appellant's argument is that the statute was enacted subsequent to State v. Rhodes, supra, and Morgan v. Cox, supra, and operates prospectively. We feel reasonably certain that the legislature was fully aware of our decisions in enacting the statute. It would appear that legislative public policy concerning credit for time served is expressed by failure to expressly make the act retroactive. State v. Padilla, supra.
Following a hearing on the habeas corpus proceedings, on March 31, 1965, appellant was remanded to the juvenile court of Bernalillo County 'for further proceedings' by April 10, 1965, otherwise, he was to be discharged. On April 9, 1965, he was arrested at the penitentiary and taken to the Bernalillo County jail. On April 26, 1965, he was charged with the offense of unlawful breaking and entering. This charge was later dismissed, and, following psychiatric examination, he was charged, tried and convicted of forcible rape a second time.
Appellant contends that his second conviction is void because of his unlawful arrest and detention prior to his conviction on September 24, 1965. This point also is found without merit. There was a showing of probable cause for his arrest even without a warrant. The trial court acquired jurisdiction of appellant when the new information was filed against him. State v. Garcia, 76 N.M. 171, 413 P.2d 210; State v. Vaughn, 74 N.M. 365, 393 P.2d 711. Any delay in bringing the appellant before a magistrate between the time of his arrest and the time he was convicted, absent a showing of prejudice, would not deprive the trial court of jurisdiction. State v. Minor, 78 N.M. 680, 437 P.2d 141; State v. Lattin, 78...
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State v. Sedillo
...two motions for post-conviction relief were consolidated on appeal. Denial of post-conviction relief was affirmed in State v. Sedillo, 79 N.M. 9, 439 P.2d 226 (1968). His third motion for post-conviction relief, filed July 22, 1968, was denied October 11, 1968. His fourth motion for post-co......
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State v. Matthews
...supra, should be applied retrospectively. There is no basis for this contention, as we have repeatedly held. See State v. Sedillo, 79 N.M. 9, 439 P.2d 226 (1968); and State v. Padilla, 78 N.M. 702, 437 P.2d 163 The judgment of the trial court is affirmed. It is so ordered. NOBLE, C.J., and ......
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State v. Sedillo
...sentence, all of which were denied. An appeal was taken to the Supreme Court under Rule 93, supra, and was affirmed in State v. Sedillo, 79 N.M. 9, 439 P.2d 226 (1968). Another appeal, from a later denial of post-conviction relief, was affirmed by this court in State v. Sedillo, 81 N.M. 622......
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State v. Dalrymple
...v. Sedillo, 79 N.M. 255, 442 P.2d 213 (Ct.App.1968); State v. Padilla, 78 N.M. 702, 437 P.2d 163 (Ct.App.1968). See also State v. Sedillo, 79 N.M. 9, 439 P.2d 226 (1968). We have also held to be without merit the contention that a failure to give this statute retroactive effect violates the......