State v. Travarez
| Citation | 657 P.2d 636, 99 N.M. 309 |
| Case Date | January 06, 1983 |
| Court | Court of Appeals of New Mexico |
99 N.M. 309
657 P.2d 636
STATE of New Mexico, Plaintiff-Appellee,
v.
Al TRAVAREZ, Defendant-Appellant.
No. 6042.
Court of Appeals of New Mexico
Jan. 6, 1983.
[657 P.2d 637]
John Bigelow, Chief Public Defender, Santa Fe, for defendant-appellant. Jeff Bingaman, Atty. Gen., William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
OPINION
WALTERS, Chief Judge.
Defendant entered a plea of no contest to embezzlement of over $100 but less than $2500. On March 23, 1981, sentence was deferred and defendant was placed on probation for two years. One of the conditions of defendant's probation was that he pay restitution of $210 within 90 days of sentencing. On March 1, 1982, the State filed a petition to revoke probation, alleging defendant's failure to pay restitution. The revocation hearing was held on October 4, 1982. At that hearing, defendant moved to amend the judgment and sentence of March 23, 1981, arguing that it improperly imposed a probation period longer than the maximum sentence authorized for the crime charged. The motion was granted, but following the revocation hearing defendant was sentenced to 18 months in the state penitentiary. That sentence was suspended, and defendant was ordered to serve 18 months on probation under the supervision of the Department of Corrections, and to pay restitution. Credit for probation time already served from March 23, 1981 to March 2, 1982 was made a part of the judgment. We proposed summary reversal; the State has filed a memorandum in opposition which we find unpersuasive.
Defendant's docketing statement raised three issues:
(a) Whether the district court had jurisdiction to proceed in the revocation hearing of October 4, 1982.
(b) Whether the proceeding should have been dismissed for denial of due process because of inordinate delay from the time the Petition to Revoke Probation was filed to the time the revocation hearing was held.
(c) Whether defendant should have been given credit for time served from March 2, 1982, to October 4, 1982.
In addressing Issue (c) the State agrees that defendant should have been given credit for time served from March 2, 1982, to October 4, 1982 but argues, nevertheless, that the sentence imposed at the revocation hearing was proper. The State cites, as allowing imposition of a sentence in addition to deferred or suspended sentences even though the period of the deferred or suspended sentence had expired, the cases of State v. Sorrows, 63 N.M. 277, 317 P.2d 324 (1957); State v. Vigil, 44 N.M. 200, 100 P.2d 228 (1940); and Ex Parte Lucero, 23 N.M. 433, 168 P. 713 (1917). It relies on In re Juan Lujan, 18 N.M. 310, 137 P. 587 (1913), for the...
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