State v. Stout, No. 13341

• Docket Nº: No. 13341
• Citation: 627 P.2d 871, 1981 NMSC 45, 96 N.M. 29
• Case Date: May 05, 1981
• Court: Supreme Court of New Mexico

Page 871

627 P.2d 871 96 N.M. 29 STATE of New Mexico, Plaintiff-Appellee,
v.
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.

OPINION

RIORDAN, Justice.

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

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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.

I. THE ENHANCEMENT PROCEDURE

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...