State v. Serrano
| Decision Date | 29 August 1966 |
| Docket Number | No. 7870,7870 |
| Citation | 1966 NMSC 166,417 P.2d 795,76 N.M. 655 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Johnny Henry SERRANO, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
SPIESS, Judge, Court of Appeals.
The defendant (appellant), Johnny Henry Serrano, was charged by information with the crime of burglary and entered the plea of guilty. Prior to the imposition of sentence the court was asked to suspend, or defer sentence to the end that defendant would be placed upon probation. The request was denied and sentence to the state penitentiary was imposed. This appeal followed.
Two points are relied upon for reversal. First, appellant contends that he was denied an adequate hearing concerning his suitability for probation on the ground that the court declined to hear the testimony of certain witnesses offered in his behalf. The authority of the court to suspend or defer the sentence of one convicted of a crime is conferred by § 40A--29--15, N.M.S.A., 1953, which provides:
'Upon entry of a judgment of conviction of any crime not constituting a capital or first degree felony, any court having jurisdiction when it is satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may either:
Upon deferring or suspending sentence the court is required, in accordance with Section 40A--29--17, N.M.S.A., 1953, to place the defendant upon probation. It is clear that suspension or deferment of sentence is not a matter of right but is an act of clemency and committed to the discretion of the trial court.
See: State of Arizona v. Douglas, 87 Ariz. 182, 349 P.2d 622; Ridley v. Commonwealth of Kentucky, 287 S.W.2d 156 (Ky.1956); Ex parte Medley, 73 Idaho 474, 253 P.2d 794; People of State of Michigan v. Marks, 340 Mich. 495, 65 N.W.2d 698; State ex rel. Dake v. Alvis, 103 Ohio App. 38, 144 N.E.2d 223; State of Utah v. Sibert, 6 Utah 2d 198, 310 P.2d 388; Hughes v. State of Oklahoma, 346 P.2d 355 (Okl.Cr.App.1959).
While in our opinion the statute contemplates that reasonable investigation be made by the court in cases where probation is indicated, no procedure is prescribed for such investigation, nor does the statute specify the character or quantum of evidence necessary to warrant the suspension or deferral of sentence.
It appears from the record that before sentence was imposed, appellant's counsel requested the court to place appellant upon probation. In undertaking to so persuade the court, counsel reviewed appellant's family and scholastic background, stated that a number of persons, including school authorities, were of the opinion that appellant was a proper subject for probation. Testimony of certain witnesses was then offered in support of appellant's request. The court refused to hear testimony stating that a pre-sentence report had been furnished, and thereupon imposed sentence.
Appellant's claim of error is apparently based upon the assumption that he was entitled to a trial, or hearing upon his application for suspension, or deferral of sentence and consequently entitled as of right to introduce the testimony of witnesses in his behalf.
The refusal of the trial court to hear the offered testimony, in our opinion, does not justify reversal for the reason that the statute, § 40A--29--15, supra, makes no requirement that the contemplated investigation shall include a trial, or hearing, nor does the statute by implication, or otherwise, grant the defendant the right to introduce testimony in support of his request. See State v. Cohen, 11 Wash.2d 203, 118 P.2d 959.
The further reason preventing reversal is that the information which was intended to be presented to the court by the testimony which appellant offered would have been only cumulative in that the same favorable information had been presented through counsel's statement and the pre-sentence report. Compare Bezemek v. Balduini, 28 N.M. 124, 207 P. 330.
It is next claimed that the denial of probation in this case constituted an abuse of judicial discretion. It is stated by appellant that the court considered only the presentence report and on the basis of such report denied probation. In so stating we assume appellant has considered only certain of the showing contained in the record.
The court is at liberty to make any inquiry it feels might assist it in reaching a proper conclusion. We cannot, therefore, assume that the only investigation made by the court is that reflected by the record.
The legislature has not required a specification of reasons for granting or denying probation and no reasons have been given by the court in this case.
In State v. Douglas, supra, the Supreme Court of Arizona, in considering a statute similar to ours, said:
An...
To continue reading
Request your trial
-
United States v. DeVargas
...both deferred sentences and suspended sentences acts of judicial clemency, see State v. Serrano, 1966-NMSC-166, ¶ 3, 76 N.M. 655, 657, 417 P.2d 795, 796 ("It is clear that suspension or deferment of sentence is not a matter of right but is an act of clemency."); however, this label alone do......
-
United States v. Devargas
...of New Mexico also has referred to suspended sentences as judicial acts of clemency. See State v. Serrano, 1966-NMSC-166, ¶ 3, 76 N.M. 655, 657, 417 P.2d 795, 796. Indeed, suspended sentences provide an important benefit those who receive them: the defendant avoids incarceration so long as ......
-
State v. Madrigal
...the sentencing alternatives available--a suspended or deferred sentence--were within the discretion of the trial court. State v. Serrano, 76 N.M. 655, 417 P.2d 795 (1966). Defendant claims judicial discretion was abused in this case because of defendant's age; because it was a first offense......
-
State v. Barela
...for that of the district court even when the district court does not provide an explanation for its decision. State v. Serrano, 76 N.M. 655, 659, 417 P.2d 795, 797 (1966). Therefore, when the record is silent as to the reasons behind a district court's ruling, "regularity and correctness ar......