State v. Thomas, 12591

• Decision Date: 18 November 1991
• Docket Number: No. 12591,12591
• Citation: 1991 NMCA 131,825 P.2d 231,113 N.M. 298
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Melanie THOMAS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 231

825 P.2d 231

113 N.M. 298

STATE of New Mexico, Plaintiff-Appellee, v. Melanie THOMAS, Defendant-Appellant.

No. 12591.

Court of Appeals of New Mexico.

Nov. 18, 1991.

Certiorari Denied Jan. 7, 1992.

[113 NM 299] Tom Udall, Atty. Gen., Max W. Shepherd, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender, Hollis Ann Whitson, Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

APODACA, Judge.

Defendant appeals from the trial court's orders entered in two separate criminal proceedings. Finding that defendant had violated the conditions of her probation, the trial court revoked probation and resentenced defendant. The court then suspended the sentence on certain conditions. In doing so, the court granted and denied defendant credit against her sentence for certain periods of time. Defendant has briefed only one of the two issues listed in the docketing statement. The issue not briefed is deemed abandoned. State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct.App.1985). The remaining issue is whether the trial court properly denied defendant credit for a certain period of time served on probation. The resolution of this issue, in turn, depends on whether or not defendant was a fugitive during all or a part of that period.

Additionally, the parties have briefed the issue concerning the appropriate disposition or remedy in the event this court determined that the trial court improperly denied credit. We hold that the trial court's finding with respect to defendant's fugitive status was error. We therefore remand with instructions to the trial court to conduct a hearing on the issue of credit and to enter an amended judgment and sentence consistent with this opinion.

BACKGROUND

This case originated in the trial court as two separate criminal causes (referred to respectively in this opinion as Causes 1 and 2). In Cause 1, defendant pled guilty to two counts of possession with intent to distribute cocaine. The judgment and sentence in that cause sentenced her to nine years with two years mandatory parole on each count, to be served concurrently. The trial court then suspended the sentence and placed defendant on probation for five years with certain conditions. The only condition relevant to this appeal was the requirement that defendant enter and successfully complete the Delancey Street drug rehabilitation program (Delancey Street program).

In Cause 2, defendant pled guilty to one count of issuing a worthless check with intent to defraud. She was sentenced to a one-year confinement with one year mandatory parole, to be served concurrently with the sentence in Cause 1. The trial court then suspended the sentence and placed defendant on probation for one year, subject to the same conditions as in Cause 1.

Defendant signed a probation order in both causes and was apparently released from custody on September 23, 1988. On December 8, 1988, the state filed a motion to revoke her probation in each cause. The motion alleged that defendant had violated the conditions of her probation by leaving the Delancey Street program on November 17, 1988. The motion also requested that the trial court find that defendant was a fugitive from justice and issue a warrant for her arrest. The court entered an order finding that defendant was a fugitive, and separate warrants were issued about a week apart in both causes.

More than a year later, on December 22, 1989, defendant was arrested. After several hearings, the trial court entered its order revoking probation and reimposing probation subject again to the condition that defendant enter and successfully complete the Delancey Street program. The trial court's order credited defendant for some of the time served on probation and for presentence confinement, but denied her credit for the period between November 17, 1988, the day she left the Delancey Street program, and December 22, 1989, the day she turned herself in to the San Juan County Sheriff and was arrested. It is this denial of credit that gave rise to this appeal.

DISCUSSION

I. Was Credit Properly Denied?

The parties do not dispute that defendant is entitled to credit for all the time served on probation unless the trial court determined that she was a fugitive. See NMSA 1978, Sec. 31-21-15(B) & (C) (Repl.Pamp.1990); State v. Apache, 104 N.M. 290, 720 P.2d 709 (Ct.App.1986); State v. Kenneman, 98 N.M. 794, 653 P.2d 170 (Ct.App.1982). With respect to Cause 1, the issue raised on appeal affects only the amount of time remaining on the nine-year sentence. However, with respect to Cause 2, the issue has jurisdictional implications because, if the entire credit was improperly denied, then defendant would necessarily be deemed to have fully served the one-year probationary term on September 23, 1989, before the trial court attempted to revoke her probation. Under that posture, the trial court would have lacked jurisdiction to revoke that term of probation. See State v. Travarez, 99 N.M. 309, 657 P.2d 636 (Ct.App.1983). Nonetheless, the fact that the issue has jurisdictional implications does not necessarily allow us to consider the issue raised for the first time on appeal. See State v. Cutnose, 87 N.M. 307, 532 P.2d 896 (Ct.App.1974) (where jurisdictional issue depends on facts, issue appearing for the first time on appeal without factual support in the record would not be entertained).

Because the trial court is authorized to make the "fugitive from justice" determination and to deny credit on that basis, and because defendant did not raise the issue argued on appeal in the trial court, we should address the issue in the context of fundamental, rather than jurisdictional, error. In a series of recent cases, our supreme court has expressed a preference to move away from the concept of jurisdictional error in areas that previously were called "jurisdictional" and instead, to analyze the issues under the rubric of fundamental error. See State v. Ortega, 112 N.M. 554, 817 P.2d 1196 (1991) (analyzing a failure to instruct on an essential element of the crime as fundamental, not jurisdictional, error); State v. Osborne, 111 N.M. 654, 808 P.2d 624 (1991) (fundamental error is present when the question of guilt is so doubtful that it would shock the conscience to permit the conviction to stand, or when the court considers it necessary to avoid a miscarriage of justice); see also State v. Trevino, (N.M.Ct.App.1991) [No. 12,375, filed July 2, 1991] (citing Osborne and indicating that the term "jurisdictional error" should be confined to instances in which the court where the error occurred was not competent to act, and that it is inappropriate to equate jurisdictional error with all instances in which error may be raised for the first time on appeal). In this appeal, the trial court was clearly authorized by Section 31-21-15(C) to determine whether defendant was a fugitive and to deny credit on that basis. Thus, we proceed to determine whether fundamental error is present in this appeal.

The state has the burden of proving that a defendant is a fugitive within the meaning of the statute. See Baca v. Bueno Foods, 108 N.M. 98, 766 P.2d 1332 (Ct.App.1988) [PCITE, 825 P.2d 234] 1988) (one who seeks relief under a statute has the burden of proving the given situation is within its terms); see also State v. Apache (Section 31-21-15(C) requires that the court determine, as a factual matter, that warrant could not be served); State v. Kenneman (implying that issue of fugitive status needs to be raised by the state in the trial court to be preserved on appeal); State v. Murray, 81 N.M. 445, 468 P.2d 416 (Ct.App.1970) (where record fails to show whether proper credit had been given on issue of defendant's fugitive status, defendant is entitled to an evidentiary hearing on remand, and, in the absence of such proof, defendant is entitled to credit for all the time served on probation, from the date probation commenced until the date probation was revoked). These cases suggest that the matter of denying credit when defendant is a fugitive must be raised and shown by the state. We need not decide in this appeal the form that the showing must take. See State v. Smith, 110 N.M. 534, 797 P.2d 984 (Ct.App.1990) (where defendant did not call to the trial court's attention the lack of formal evidence, appellate court would not decide the question of whether formal evidence was required to prove factual basis for enhanced sentence). In this appeal there was an insufficient showing that defendant was a fugitive.

A probationer is a fugitive within the meaning of the statute if the trial court finds that "a warrant for [his or her] return ... cannot be served...." Section 31-21-15(C); State v. Apache. A bare showing that the warrant was issued but not served is not sufficient to establish that a probationer is a fugitive. Instead, we believe the state is required, at a minimum, to show that the state attempted to serve the warrant but was unable to or that it would have failed to serve the warrant if it had attempted to do so. See State v. Apache (officer testified that standard procedures were followed and bulletins were sent to city of defendant's last known address and to the National Crime Information Center); cf. State v. Murray (warrant should be promptly executed against a probation violator while location is known or could be known with due diligence and whose return is possible).

Defendant argues that the only finding of record that bears on defendant's fugitive status is in the state's motion (requesting the issuance of a warrant for defendant's arrest) and the order issued as a result of that motion, which expressly finds defendant to be a fugitive. The state concedes that the finding made in the order is not binding on defendant because the order was issued in ex parte proceedings. See State v. Apache (holding that the judicial determination of fugitive status must be made only...