{ "id": 834239, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Diane MARTINEZ, Defendant-Appellant", "name_abbreviation": "State v. Martinez", "decision_date": "1998-01-22", "docket_number": "No. 18763", "first_page": "83", "last_page": "85", "citations": [ { "type": "official", "cite": "125 N.M. 83" }, { "type": "parallel", "cite": "957 P.2d 68" }, { "type": "parallel", "cite": "1998-NMCA-047" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "100 N.M. 764", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588533 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "765", "parenthetical": "when arguments in brief are unsupported by cited authority, court may assume that there is no supporting authority" }, { "page": "1330", "parenthetical": "when arguments in brief are unsupported by cited authority, court may assume that there is no supporting authority" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0764-01" ] }, { "cite": "936 P.2d 426", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1997, "pin_cites": [ { "page": "429-30", "parenthetical": "for purpose of speedy-trial rule, time on home detention is not \"jail\" time" } ], "opinion_index": 0 }, { "cite": "86 Wash.App. 312", "category": "reporters:state", "reporter": "Wash. App.", "case_ids": [ 1278747 ], "year": 1997, "pin_cites": [ { "parenthetical": "for purpose of speedy-trial rule, time on home detention is not \"jail\" time" } ], "opinion_index": 0, "case_paths": [ "/wash-app/86/0312-01" ] }, { "cite": "664 N.E.2d 425", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "427-28", "parenthetical": "house arrest with electronic monitoring device is not the equivalent of \"jail or house of correction\" for purpose of sentencing statute" } ], "opinion_index": 0 }, { "cite": "422 Mass. 546", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 890293 ], "year": 1996, "pin_cites": [ { "parenthetical": "house arrest with electronic monitoring device is not the equivalent of \"jail or house of correction\" for purpose of sentencing statute" } ], "opinion_index": 0, "case_paths": [ "/mass/422/0546-01" ] }, { "cite": "125 Or.App. 613", "category": "reporters:state", "reporter": "Or. App.", "case_ids": [ 4431024 ], "weight": 5, "year": 1994, "pin_cites": [ { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/or-app/125/0613-01" ] }, { "cite": "509 N.W.2d 73", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 8666170, 8666142 ], "year": 1993, "pin_cites": [ { "page": "75", "parenthetical": "escape from \"custody\"; statute forbids \"failure of a prisoner to remain within the extended limits of his or her confinement\" and specifically contemplates community residential confinement" } ], "opinion_index": 0, "case_paths": [ "/wis-2d/180/0474-01", "/wis-2d/180/0348-01" ] }, { "cite": "180 Wis.2d 348", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8666142 ], "year": 1993, "pin_cites": [ { "parenthetical": "escape from \"custody\"; statute forbids \"failure of a prisoner to remain within the extended limits of his or her confinement\" and specifically contemplates community residential confinement" } ], "opinion_index": 0, "case_paths": [ "/wis-2d/180/0348-01" ] }, { "cite": "888 P.2d 167", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1995, "pin_cites": [ { "page": "168", "parenthetical": "escape statute refers to \"detention facility\"; \"home detention\" is defined to include confinement in private residence subject to electronic monitoring" } ], "opinion_index": 0 }, { "cite": "76 Wash.App. 747", "category": "reporters:state", "reporter": "Wash. App.", "case_ids": [ 489898 ], "year": 1995, "pin_cites": [ { "parenthetical": "escape statute refers to \"detention facility\"; \"home detention\" is defined to include confinement in private residence subject to electronic monitoring" } ], "opinion_index": 0, "case_paths": [ "/wash-app/76/0747-01" ] }, { "cite": "611 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "escape from detention; statutory definition includes electronic monitoring in home" } ], "opinion_index": 0 }, { "cite": "82 Ohio App.3d 168", "category": "reporters:state", "reporter": "Ohio App. 3d", "case_ids": [ 1679876 ], "year": 1992, "pin_cites": [ { "parenthetical": "escape from detention; statutory definition includes electronic monitoring in home" } ], "opinion_index": 0, "case_paths": [ "/ohio-app-3d/82/0168-01" ] }, { "cite": "567 N.W.2d 478", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1997, "pin_cites": [ { "page": "482", "parenthetical": "definitional section specifically includes electronic monitoring site" } ], "opinion_index": 0 }, { "cite": "223 Mich.App. 651", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 1559469 ], "year": 1997, "pin_cites": [ { "parenthetical": "definitional section specifically includes electronic monitoring site" } ], "opinion_index": 0, "case_paths": [ "/mich-app/223/0651-01" ] }, { "cite": "186 Ariz. 622", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 1505956 ], "weight": 2, "pin_cites": [ { "page": "1074" } ], "opinion_index": 0, "case_paths": [ "/ariz/186/0622-01" ] }, { "cite": "109 N.M. 437", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590329 ], "weight": 2, "pin_cites": [ { "page": "438" }, { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0437-01" ] }, { "cite": "1997-NMCA-064", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 142190 ], "weight": 3, "pin_cites": [ { "page": "\u00b619" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0476-01" ] }, { "cite": "97 N.M. 67", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555155 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/97/0067-01" ] }, { "cite": "101 N.M. 252", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586343 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/101/0252-01" ] }, { "cite": "117 N.M. 807", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552633 ], "weight": 4, "pin_cites": [ { "page": "808" }, { "page": "1111", "parenthetical": "emphasis deleted" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0807-01" ] }, { "cite": "118 N.M. 410", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563451 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "416", "parenthetical": "discussing method of reserving issues in plea agreement" }, { "page": "7", "parenthetical": "discussing method of reserving issues in plea agreement" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0410-01" ] } ], "analysis": { "cardinality": 560, "char_count": 8067, "ocr_confidence": 0.732, "pagerank": { "raw": 9.766362187157108e-08, "percentile": 0.5314499030638465 }, "sha256": "acd69f002ef6d7af879ef3a26f610b6d2025f6cb5dbd05ec6367b9cf0f058ae7", "simhash": "1:3640606a048d6a81", "word_count": 1299 }, "last_updated": "2023-07-14T21:27:04.972911+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "FLORES and WECHSLER, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Diane MARTINEZ, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nHARTZ, Chief Judge.\n1. The question presented by this appeal is whether someone under no obligation to report to jail can be guilty of escape from jail. Our answer is no.\nBACKGROUND\n2. Defendant first raised the issue in a motion to dismiss after she was charged with escape from jail. At the district court hearing on the motion, she and the State stipulated to the following facts:\n1. [Defendant] was committed to the Otero County Detention Center on the 24th day of October 1995 by Judge Barber, Alamogordo Municipal Court, to serve a term of one-hundred-seventy-nine (179) days.\n2. [Defendant] was released from the jail to complete her sentence on electronic monitoring.\n3. On March 11, 1996, John Whitely, Detention Services Manager, allocated [Defendant] time to be outside her home until 5 p.m. in order to appear in Municipal Court and to keep an appointment with Income Support Division.\n4. [Defendant] did not return home at the appointed time.\n5. Nor did [Defendant] report thereafter and was eventually arrested on a warrant.\nDefendant argued that the stipulated facts could not sustain a conviction for escape from jail.\n3.The district court denied the motion, and Defendant entered a no-contest plea, reserving the right to appeal the issue raised by her motion. See State v. Hodge, 118 N.M. 410, 416, 882 P.2d 1, 7 (1994) (discussing method of reserving issues in plea agreement). We issued a calendar notice proposing to reverse. See Rule 12-210(A), (D) NMRA 1998 (describing summary calendar procedures). The State has responded with a memorandum in opposition.\nDISCUSSION\n4. \u201cEscape from jail consists of any person who shall have been lawfully committed to any jail, escaping or attempting to escape from such jail.\u201d NMSA 1978, \u00a7 30-22-8 (1963). We have repeatedly held that a prisoner can violate the statute without breaking out from the confines of the jail itself. See State v. Hill, 117 N.M. 807, 877 P.2d 1110 (Ct.App.1994) (escape during furlough); State v. Coleman, 101 N.M. 252, 680 P.2d 633 (Ct.App.1984) (escape during work release for private employer); State v. Gilman, 97 N.M. 67, 636 P.2d 886 (Ct.App.1981) (escape while on prisoner work detail at county fairgrounds). But in each of these cases the defendant failed to return to jail when he was required to be there. As we noted in Hill, \u201cthe dispositive issue is whether Defendant was lawfully committed to jail and thereafter failed to return to jail, even though he was given permission to be outside its confines for a specific period of time.\u201d 117 N.M. at 808, 877 P.2d at 1111 (emphasis deleted).\n5. The present case is distinguishable from the above precedents because Defendant was under no obligation to report to jail at any future time. A recent decision by this Court assumed that failure to abide by the terms of a house arrest would not constitute the crime of escape. State v. Fellhauer, 1997-NMCA-064, \u00b619, 123 N.M. 476, 943 P.2d 123. That assumption was correct. Section 30-22-8 requires that the offender have been \u201ccommitted to any jail\u201d and that the escape be \u201cfrom such jail.\u201d It contains no reference to other forms of commitment. We fail to see how one can escape from jail when one is never obliged to be in jail. Penal statutes should not be construed contrary to their plain meaning. See State v. Ruiz, 109 N.M. 437, 438, 786 P.2d 51, 52 (Ct.App.1989).\n6. In its memorandum in opposition the State refers to decisions from other states upholding escape convictions under facts similar to those in this case. But those decisions rely on statutory language that is considerably more expansive than Section 30-22-8. See State v. Williams, 186 Ariz. 622, 925 P.2d 1073, 1074 (Ariz.Ct.App.1996) (escape occurs when the individual is in \u201ccustody,\u201d which is defined by statute to include \u201cconstructive restraint pursuant to ... court order\u201d); People v. Sheets, 223 Mich.App. 651, 567 N.W.2d 478, 482 (1997) (definitional section specifically includes electronic monitoring site); State v. Long, 82 Ohio App.3d 168, 611 N.E.2d 504 (1992) (escape from detention; statutory definition includes electronic monitoring in home); State v. Parker, 76 Wash.App. 747, 888 P.2d 167, 168 (1995) (escape statute refers to \u201cdetention facility\u201d; \u201chome detention\u201d is defined to include confinement in private residence subject to electronic monitoring); State v. Holliman, 180 Wis.2d 348, 509 N.W.2d 73, 75 (Wis.Ct.App. 1993) (escape from \u201ccustody\u201d; statute forbids \u201cfailure of a prisoner to remain within the extended limits of his or her confinement\u201d and specifically contemplates community residential confinement).\n7. The opinion most helpful to the State is State v. Esmond, 125 Or.App. 613, 866 P.2d 494 (1994). The defendant in that ease had been placed on probation, subject to completing 90 days in the Benton County Community Correction home detention program. On the 53rd day of home detention the defendant left home without permission and then left town. He was convicted of escape from a correctional facility. The appeals court wrote:\n[The defendant] was booked into the Benton County Correctional Facility, given an alternate cell assignment and advised that departure from his residence without approval from his probation officer would constitute escape from custody. During the relevant 90-day period, he was in the constructive custody of the Benton County Correctional Facility[.]\nId., 866 P.2d at 495. Relying on this language, one could argue that Defendant here was in the constructive custody of the jail.\n8. We are not persuaded. The Oregon statute interpreted in Esmond penalized \u201cthe unlawful departure of a person from custody or a correctional facility,\u201d and defined \u201ccorrectional facility\u201d as \u201cany place used for the confinement of persons charged with or convicted of a crime or otherwise confined under a court order.\u201d Id. The broad language of the Oregon statute could readily be interpreted to encompass court-ordered home detention. The New Mexico statute, in contrast, speaks specifically of escaping from a \u201cjail.\u201d See \u00a7 30-22-8. A jail is a \u201cbuilding designated by law, or regularly used, for the confinement of persons held in lawful custody.\u201d Black\u2019s Law Dictionary 834 (6th ed.1990). It is too much of a stretch of the English language to say that Defendant was \u201cconstructively\u201d in jail. See Commonwealth v. Cowan, 422 Mass. 546, 664 N.E.2d 425, 427-28 (1996) (house arrest with electronic monitoring device is not the equivalent of \u201cjail or house of correction\u201d for purpose of sentencing statute); State v. Perrett, 86 Wash.App. 312, 936 P.2d 426, 429-30 (1997) (for purpose of speedy-trial rule, time on home detention is not \u201cjail\u201d time).\n9.Given the statutory language in New Mexico, we cannot uphold Defendant\u2019s conviction. Although the State claims that this leads to an absurd result, the undesirable result arises from a gap in a 1963 statute that did not contemplate home detention. This Court has no authority to remedy gaps in the criminal code. That task rests with the legislature.\n10. Finally, we reject the State\u2019s suggestion that Defendant\u2019s conviction could be predicated on her home detention agreement, in which she apparently acknowledged that she could be prosecuted for escape. The elements of a criminal offense are set by statute; they cannot be modified by private agreement. The State cites no authority to the contrary. See In re Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (when arguments in brief are unsupported by cited authority, court may assume that there is no supporting authority).\n11. We reverse Defendant\u2019s conviction and sentence.\n12. IT IS SO ORDERED.\nFLORES and WECHSLER, JJ., concur.", "type": "majority", "author": "HARTZ, Chief Judge." } ], "attorneys": [ "Tom Udall, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, for Appellee.", "Phyllis H. Subin, Chief Public Defender, Santa Fe, Samuel Z. Damon, Alamogordo, for Appellant." ], "corrections": "", "head_matter": "1998-NMCA-047\n957 P.2d 68\nSTATE of New Mexico, Plaintiff-Appellee, v. Diane MARTINEZ, Defendant-Appellant.\nNo. 18763.\nCourt of Appeals of New Mexico.\nJan. 22, 1998.\nCertiorari Denied March 16, 1998.\nTom Udall, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, for Appellee.\nPhyllis H. Subin, Chief Public Defender, Santa Fe, Samuel Z. Damon, Alamogordo, for Appellant." }, "file_name": "0083-01", "first_page_order": 125, "last_page_order": 127 }