Washington v. Rodriguez
| Decision Date | 05 March 1971 |
| Docket Number | No. 537,537 |
| Citation | 82 N.M. 428,483 P.2d 309,1971 NMCA 21 |
| Parties | George Paul WASHINGTON, Petitioner-Appellant, v. Felix RODRIGUEZ, Respondent-Appellee. Leon AUSTIN, Petitioner-Appellant, v. Felix RODRIGUEZ, Respondent-Appellee. |
| Court | Court of Appeals of New Mexico |
Defendants Washington and Austin, by separate motions under Rule 93, (§ 21--1--1(93), N.M.S.A. 1953 (Rpl.Vol. 4)) seek to vacate sentences which had been imposed upon them on April 14, 1961, following their conviction of the crime of sodomy under Chapter 78, Laws of 1955 (now repealed).
The motions were consolidated for hearing in the district court and are so presented here. Denial of the motions after hearing by the trial court resulted in this appeal. We affirm.
Separate briefs have been filed on behalf of each defendant and, as will be shown, certain of the points in each brief present the same questions while others require separate consideration.
The following are the relevant facts. Both defendants were charged with having committed the crime of sodomy while inmates of the penitentiary of New Mexico. They were jointly tried and convicted and each sentenced to a term of not less than one year; no maximum sentence was specified by the court. The sentences so imposed were to run concurrently with the sentences each of the defendants were then serving. It appears that prior to conviction of the crime of sodomy and after the act had allegedly been committed, defendants were both punished on account of the act by penitentiary authorities. The punishment consisted of solitary confinement, restricted diet, and the denial of certain privileges.
After serving a period of time in the penitentiary, both defendants were paroled; thereafter, both defendants were paroled; of them and they were returned to the penitentiary. At the time the motions were filed, which we are considering, both defendants were serving the sentences imposed for sodomy. Defendant Austin, however, at the time was also serving a sentence for the theft of an automobile.
The material portions of the sodomy statute involved follow:
Chapter 78, Laws of New Mexico 1955.
At the time the sentences were imposed the Indeterminate Sentence Act, § 41--17--1, N.M.S.A.1953 (now repealed) was applicable. The maximum penalty, although not specified by statute, (Sec. 2 above quoted) or pronounced by the court, was life imprisonment. State v. Frederick, 74 N.M. 42, 390 P.2d 281 (1964); Starkey v. Cox, 73 N.M. 434, 389 P.2d 203 (1964); See State v. Maestas, 63 N.M. 67, 313 P.2d 337 (1957); State v. Sisneros, 81 N.M. 194, 464 P.2d 924, (Ct.App.1970).
Both defendants take the position that the maximum penalty of life imprisonment constitutes cruel and unusual punishment prohibited by Article II, Section 13, of the Constitution of New Mexico and the Eighth Amendment to the Constitution of the United States.
This contention, in our opinion, is properly to be considered in the light of the Indeterminate Sentence Act, the purpose of which was rehabilitation of the convicted person, with his release by parole from the penal institution to which he was sentenced, between the minimum and maximum term. In McCutcheon v. Cox, 71 N.M. 274, 377 P.2d 683 (1963), the court, in commenting upon the objects and purposes of the Indeterminate Sentence Act, said:
'* * * the principles of indeterminate sentence, probation, paroles and pardons, in varying degrees, have been adopted.
The objects and purposes of the Indeterminate Sentence Act, which form the basis for fixing the maximum penalty of life imprisonment, in our opinion, clearly preclude a determination that cruel and unusual punishment results from the sentence. See State v. Peters, 78 N.M. 224, 430 P.2d 382 (1967). Authorities cited by defendants do not, in our opinion, support their contention when considered inconnection with the Indeterminate Sentence Act.
Both defendants further contend that the sentence imposed by the court for sodomy amounts to double jeopardy because defendants had already been punished by the prison officials for the same offence. This contention, in our opinion, is without merit.
In People v. Eggleston, 255 Cal.App.2d 337, 63 Cal.Rptr. 104 (1967), considered a like contention involving the crime of possession of a knife while confined in a prison, and held:
'* * * prison disciplinary measures do not bar subsequent prosecution in a criminal action for violation of a penal statute prohibiting the same act which was the basis of the prison discipline * * *'
This rule accords with the view expressed by the majority of courts which have considered the question. See State v. Vinson, 8 Ariz.App. 93, 443 P.2d 700 (1968) and authorities therein cited. We think this rule is properly...
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Santillanes v. State
...held to apply to all cases then pending on direct review, provided issue was raised and preserved below); Washington v. Rodriguez, 82 N.M. 428, 431, 483 P.2d 309, 312 (Ct.App.1971) (United States Supreme Court decisions in Miranda and Escobedo not applied It is within the inherent power of ......
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State v. Druktenis
...States Supreme Court will go so far as to hold any interest asserted here to be a fundamental right. Cf. Washington v. Rodriguez, 82 N.M. 428, 431, 483 P.2d 309, 312 (Ct.App.1971) (refusing to extend right of privacy to prison inmate {92} Further, for the liberty interest to be a fundamenta......
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State v. Druktenis, 2004 NMCA 032 (N.M. App. 1/30/2004)
...States Supreme Court will go so far as to hold any interest asserted here to be a fundamental right. Cf. Washington v. Rodriguez, 82 N.M. 428, 431, 483 P.2d 309, 312 (Ct. App. 1971) (refusing to extend right of privacy to prison inmate {92} Further, for the liberty interest to be a fundamen......
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Neville v. State
...aff'd mem., 491 F.2d 751 (3d Cir. 1973), cert. denied, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 768 (1974); Washington v. Rodriguez, 82 N.M. 428, 483 P.2d 309 (Ct.App.1971). See People v. Frazier, 256 Cal.App.2d 630, 64 Cal.Rptr. 447 (1967).15 State v. Worthington, 582 S.W.2d 286 (Mo.App.197......
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Narrative and jurisprudence in state courts: the example of constitutional challenges to sex conduct regulation.
...of oral and vaginal sex with an 18 year old female they enticed into their car and offered a ride and some beer). Washington v. Rodriguez, 483 P.2d 309 (N.M. Ct. App., 1971) (on motions to vacate sentences for consensual sodomy in Witherspoon v. State, 278 So. 2d 611 (Fla. 1973) (two adult ......