State v. Stout, No. 13341

Docket NºNo. 13341
Citation627 P.2d 871, 1981 NMSC 45, 96 N.M. 29
Case DateMay 05, 1981
CourtSupreme Court of New Mexico

Page 871

627 P.2d 871
96 N.M. 29
STATE of New Mexico, Plaintiff-Appellee,
Donald Lee STOUT, Defendant-Appellant.
No. 13341.
Supreme Court of New Mexico.
May 5, 1981.

[96 NM 30]

Page 872

Martha A. Daly, Appellate Defender, Melanie S. Kenton, Asst. Appellate Defender, Santa Fe, Susan Alkema, Asst. Public Defender, Albuquerque, for defendant-appellant.

Jeff Bingaman, Atty. Gen., Charles F. Noble, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.


RIORDAN, Justice.

The defendant was convicted of robbery with a firearm and sentenced on October [96 NM 31]

Page 873

23, 1979 to a term of not less than fifteen nor more than fifty-five years. On June 19, 1980, some eight months after defendant initially began serving his sentence, the district attorney filed a supplemental information alleging that the defendant had previously been convicted of armed robbery in 1971 and therefore his punishment for the second conviction should be life imprisonment in accordance with Section 30-16-2, N.M.S.A.1978. A trial was held on the supplemental information and the jury found the defendant to be the same person previously convicted in 1971. The trial judge therefore vacated the October 23, 1979 sentence and sentenced the defendant to life imprisonment. We affirm.

The defendant raises three points on appeal: (I) the enhancement procedure violated the defendant's right to due process; (II) the resentencing of the defendant violated his constitutional protection against double jeopardy; and (III) the trial court erred in admitting penitentiary records that were not properly authenticated.


The defendant was sentenced under Section 30-16-2, N.M.S.A.1978, which reads as follows:

Robbery consists of the theft of anything of value from the person of another or from the immediate control of another, by use or threatened use of force or violence.

Whoever commits robbery is guilty of a third degree felony.

Whoever commits robbery while armed with a deadly weapon is, for the first offense, guilty of a second degree felony and, for second and subsequent offenses, is guilty of a first degree felony.

The statute provides no procedure for determining whether the defendant had previously been convicted of armed robbery, nor does it state how the defendant is to be informed of the possible sentence that he is facing if convicted. Since it is a procedural matter, it is within the province of the court to determine how this is to be accomplished.

We first address the issue of whether the filing of the notification of enhancement after conviction violates the defendant's rights. The defendant argues that he is entitled to notice that he may be sentenced to life imprisonment as a second offender before he is tried on the robbery offense, claiming that anything else denies him due process. This Court has previously held that a defendant is entitled to notice of the charges by some pleading being filed and an opportunity to be heard before sentence is imposed. In State v. Rhodes, 76 N.M. 177, 181, 413 P.2d 214, 217 (1966) we stated:

(E)ssential fairness requires that there be some pleading filed by the state, whether it be by motion or otherwise, by which a defendant is given notice and opportunity to be heard before an increased penalty can be imposed.

The defendant in Rhodes appeared for sentencing and was questioned by the court as to whether he had previous convictions for narcotics violations. When the defendant...

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20 cases
  • State v. Trujillo, 26,108.
    • United States
    • Supreme Court of New Mexico
    • February 5, 2002
    ......410, 993 P.2d 727 ; State v. Torres, 1998-NMSC-052, ¶ 15, 126 N.M. 477, 971 P.2d 1267 ; State v. Stout, 96 N.M. 29, 32, 627 P.2d 871, 874 (1981) . In order to find that the trial court abused its discretion in admitting the tape and transcript of ......
  • 1997 -NMSC- 10, State v. Anaya, s. 22889
    • United States
    • Supreme Court of New Mexico
    • December 6, 1996
    ...that proof of prior DWI convictions is not an element of felony DWI is consistent with this Court's reasoning in State v. Stout, 96 N.M. 29, 627 P.2d 871 (1981). Stout considered the armed robbery statute, which provides that a first armed robbery offense is a second-degree felony whereas a......
  • State v. Harris, 7152
    • United States
    • Court of Appeals of New Mexico
    • January 10, 1984
    ...... State v. Stout, 96 N.M. 29, 627 P.2d 871 (1981); see State v. Santillanes, 96 N.M. 477, 632 P.2d 354 (1981); State v. Mayberry, 97 N.M. 760, 643 P.2d 629 ......
  • State v. Christian, 15,484
    • United States
    • Court of Appeals of New Mexico
    • March 13, 1995
    ......        We find this reasoning persuasive, and we note it is consistent with New Mexico precedent. See State v. Stout, 96 N.M. 29, 32, 627 P.2d 871, 874 (1981) (penitentiary records used to prove that defendant was previously convicted admissible as public record); ......
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