State v. Whitaker

• Decision Date: 06 February 1990
• Docket Number: No. 11254,11254
• Citation: 110 N.M. 486,797 P.2d 275,1990 NMCA 14
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Robert L. WHITAKER, a/k/a Bob Whitaker, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 275

797 P.2d 275

110 N.M. 486

STATE of New Mexico, Plaintiff-Appellee, v. Robert L. WHITAKER, a/k/a Bob Whitaker Defendant-Appellant.

No. 11254.

Court of Appeals of New Mexico.

Feb. 6, 1990.

Certiorari Denied March 19, 1990.

[110 NM 487] Jacquelyn Robins, Chief Public Defender, Sheila Lewis, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

Hal Stratton, Atty. Gen., Patricia A. Gandert, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

HARTZ, Judge.

Defendant appeals the sentence imposed upon him after his nolo contendere plea to five counts of fraud over $2,500 and five counts of making false public vouchers.

Defendant, the county manager for Curry County, supplied false invoices and other documents to obtain the issuance of requisition forms for the purchase of computer equipment. Based on the false documents, the county issued purchase orders and checks. Defendant deposited the checks in a bank account under the name of "National Computer Systems." The sole source of funds for the account was checks from the county, primarily from the county indigent fund. The total amount deposited in the account was $55,848. All money withdrawn from the account was withdrawn by defendant. The amount remaining in the National Computer Systems bank account at the time of sentencing was $2,761.88.

The indictment involved five episodes of misconduct. For each episode the indictment alleged one count of fraud and one count of making false public vouchers. Each count of fraud charged a third-degree felony, carrying a basic sentence of imprisonment of three years. The district court, however, found aggravating circumstances and enhanced the penalty on each count to imprisonment for four years. The sentences on the five fraud counts were ordered to run consecutively, for a total prison term of twenty years. The district court sentenced defendant to a term of eighteen months on each of the false-voucher counts, ordered that those five counts run concurrently with one another, and suspended the sentences. Although a plea bargain required the sentences on the false-voucher charges to run concurrently with the sentences on the fraud charges, a five-year probation imposed for the false-voucher charges was ordered to commence upon defendant's release from incarceration imposed for the fraud charges. The district court also ordered that any money in the National Computer Systems bank account be turned over to the county by defendant. In addition, as a condition of parole the district court ordered defendant to make restitution to Curry County in the amount of $50,719.20 for moneys taken by defendant and $11,600 for the costs of a special audit conducted by the county. Finally, the judgment promised that for every $20,000 (up to $60,000) paid in restitution within thirty days, defendant's term of imprisonment would be reduced by four years. Implicit in this provision is that any sum paid would reduce the $62,319.20 owed as restitution as a condition of parole.

Defendant raises the following contentions: (1) because the crime of making a false public voucher, NMSA 1978, Section 30-23-3 (Repl.Pamp.1984) is a special case of the general crime of fraud, NMSA 1978, Section 30-16-6 (Cum.Supp.1989), defendant could not be prosecuted or sentenced on the fraud charges; (2) to prevent double punishment for the same conduct, the merger doctrine requires that the sentence on each false-voucher count run concurrently with the sentence on the corresponding fraud count; (3) the aggravating circumstances found by the district court could not properly be considered as grounds for enhancement of the sentences of imprisonment for fraud; (4) the district court violated due process by enhancing the fraud sentences without prior notice to defendant of what the aggravating circumstances would be; (5) the district court lacked authority to order defendant to turn over the money in the bank account; (6) the district court lacked authority to condition a reduction of defendant's prison sentence on defendant's payment of restitution within thirty days of his original sentencing; (7) defendant was denied due process because his sentence of imprisonment in excess of eight years on the fraud charges resulted from his financial inability to pay restitution within thirty days; (8) the district court lacked authority to include the cost of the county audit in the order of restitution; and (9) if resentencing is required, it should be assigned to a different judge. We deny defendant's request in his reply brief to add an additional issue.

We vacate defendant's sentence and remand for a new sentence because of the impropriety of the sentencing provisions relating to payment of restitution within thirty days, and because of the apparent impropriety of consideration of one of the aggravating circumstances relied upon to enhance defendant's sentence. We leave to the sound discretion of the district judge whether he should proceed to reimpose sentence or recuse himself.

1. Is the False-Voucher Statute a Special Case of the Fraud Statute?

Defendant contends that he could not be prosecuted or sentenced on the fraud charges, which are third-degree felonies, because the false-voucher statute, which defines a fourth-degree felony, is a specific statute that prevails over the general fraud statute. Although State v. Ellenberger, 96 N.M. 287, 629 P.2d 1216 (1981) ruled that the state could proceed to try the defendant on both fraud and false-voucher charges, the supreme court did not specifically address the argument made by defendant here. In any event, defendant's argument fails.

As we recently stated in City of Farmington v. Wilkins, 106 N.M. 188, 189, 740 P.2d 1172, 1173 (Ct.App.1987), a specific statute prevails over a general one only if the two statutes condemn the same offense and require the same proof. For example, in the leading case of State v. Blevins, 40 N.M. 367, 60 P.2d 208 (1936), the defendant was convicted of illegally selling cattle. He was charged under a general statute prohibiting the sale of any property without the right to do so. The supreme court held that the defendant should have been charged under a specific statute regulating the theft, embezzlement, or improper sale of cattle and other animals. Similarly, in State v. Riley, 82 N.M. 235, 478 P.2d 563 (Ct.App.1970), we held that the defendant was required to be prosecuted under a statute specifically relating to marijuana, rather than one that applied to any narcotic drug.

This case is distinguishable from Blevins and Riley. The false-voucher statute, Section 30-23-3, defines the crime as follows:

Making or permitting false public voucher consists of knowingly, intentionally or willfully making, causing to be made or permitting to be made, a false material statement or forged signature upon any public voucher, or invoice supporting a public voucher, with intent that the voucher or invoice shall be relied upon for the expenditure of public money.

Section 30-16-6 defines fraud:

Fraud consists of the intentional misappropriation or taking of anything of value which belongs to another by means of fraudulent conduct, practices or representations.

Thus, the fraud statute does not require the making of a false voucher; and the false-voucher statute does not require the misappropriation or taking of anything of value. Moreover, fraud, unlike the crime of making false public vouchers, requires proof of the victim's reliance. See SCRA 1986, 14-1640 (uniform jury instruction for fraud); State v. Higgins, 107 N.M. 617, 762 P.2d 904 (Ct.App.1988) (Worthless Check Act not special case of crime of fraud). The conduct condemned by the false-voucher statute is not just a subspecies of fraud. Indeed, conduct prohibited by the false-voucher statute may not even be part of a course of conduct prohibited by the fraud statute. Therefore, we hold that defendant could be prosecuted and sentenced for violation of both statutes.

2. Merger

Even though defendant may be prosecuted on both a fraud count and the corresponding false-voucher count, consecutive sentences on the two counts may not be permissible. If the legislature intended to prohibit multiple punishment for violation of the two statutory provisions, then the sentences on a count of fraud and the corresponding false-voucher count must merge, i.e., run concurrently. See State v. Ellenberger; State v. Tsethlikai, 109 N.M. 371, 785 P.2d 282 (Ct.App.1989). In that event, defendant's sentence might require modification. Although the district court ordered the sentences on the false-voucher counts to run concurrently with the sentences on the fraud counts, the judgment provides that a five-year period of probation on the false-voucher counts should commence upon defendant's release from incarceration, thereby extending the sentence beyond that imposed for the fraud counts.

Nevertheless, the issue may be mooted because, for reasons stated in later sections of this opinion, we are remanding for resentencing. If, upon resentencing, defendant's sentence on the false-voucher counts does not in any way increase the penalty imposed upon him on the fraud counts (a result that may be compelled by the plea bargain), then defendant's claim of merger becomes moot. See State v. Ellenberger. Because of this potential mootness, we do not reach the merger issue on this appeal.

3. Aggravating Circumstances

The sentencing court may increase the basic sentence for noncapital felonies by up to one-third of the basic sentence if the court finds "aggravating circumstances." NMSA 1978, Sec. 31-18-15.1 (Repl.Pamp.1987). The statute does not provide guidance concerning what such circumstances might be. Our supreme court has stated that some of the factors that the sentencing court may consider and weigh in mitigation or aggravation of the sentence are: "unusual aspects of the defendant's character, past conduct, age, health, any events...