{
  "id": 8504311,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Gordon W. DARRAH, Defendant-Appellant",
  "name_abbreviation": "State v. Darrah",
  "decision_date": "1966-08-29",
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  "last_updated": "2023-07-14T22:44:29.378515+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "NOBLE and COMPTON, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Gordon W. DARRAH, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nJOE W. WOOD, Judge, Court of Appeals.\nDefendant was convicted of a felony \u25a0committed in Bernalillo County, New Mexico, on October 7, 1965. A supplemental information charged that defendant was the person convicted of felonies committed in the same county on December 5, 1956, and April 19, 1961. A jury found defendant to be the person so convicted in 1956 and 1961. Judgment was entered imposing sentence as an habitual offender under \u00a7 40A-29-5, N.M.S.A.1953.\nDefendant\u2019s appeal attacks the validity of the two prior convictions. He contends: (1) that he did not have a preliminary examination in connection with the two prior convictions and (2) that the first conviction was for a misdemeanor rather than a felony. Such a collateral attack is permissible. State v. Dalrymple, 75 N.M. 514, 407 P.2d 356.\nDefendant did not have a preliminary hearing in connection with either the 1956 or 1961 charges.\nIn the 1956 case defendant entered a plea of not guilty to the information. Subsequently he was tried and convicted by a jury. Defendant was represented by counsel throughout the 1956 proceeding.\nThe record of the 1961 proceeding is not included in the transcript. However, the uncontradicted testimony at the habitual offender proceeding is that defendant pled guilty to the 1961 information, and that he was represented by counsel in those proceedings.\nDefendant asserts that his right under Article II, \u00a7 14 of the Constitution of New Mexico has been violated. The applicable portion reads:\n\u201c * * * No person shall be so held on information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.\u201d\n\u201c * * * The constitutional right is a guaranty against being held to answer. * * *\u201d State v. Vigil, 33 N.M. 365, 266 P. 920.\n\u201c * * * [I]t is and has been the law in New Mexico for many years that the right to have a preliminary hearing may he and is waived upon entry of a plea in district court. State v. Gallegos, 46 N.M. 387, 129 P.2d 634. * * * \u201d Sanders v. Cox, 74 N.M. 524, 395 P.2d 353.\nWhen arraigned in the 1961 case, defendant entered a plea of guilty. He thus waived his right to the examination. See State v. Alaniz, 55 N.M. 312, 232 P.2d 982.\nIn the 1956 case, defendant entered a plea of not guilty \u201cwithout waiving right to a preliminary hearing.\u201d The trial court ordered that defendant be granted a preliminary hearing, but also accepted the plea. A similar situation occurred in State v. Bailey, 62 N.M. 111, 305 P.2d 725. In Bailey the examination was held subsequent to the plea. The court stated that the defendant:\n<i* * \u2021 [N]ot only was accorded a hearing but he waived this right by his plea. State v. Gallegos, 46 N.M. 387, 129 P.2d 634; State v. Trujillo, 33 N.M. 370, 266 P. 922; State v. Vigil, 33 N.M. 365, 266 P. 920.\u201d (Our Emphasis)\nThe entry of a plea after intelligent waiver of counsel or when represented by competent counsel serves as a waiver of the right to a preliminary exam-State v. Blackwell, 76 N.M. 445, 415 P.2d 563. If defendant wished to preserve his right to a preliminary examination, he should have refused to plead until the examination was held. See State ex rel. Hanagan v. Armijo, 72 N.M. 50, 380 P.2d 196.\nDefendant\u2019s claim that his first conviction was a misdemeanor is made on the basis of changes in \u00a7 40-21-8, N.M.S.A.1953. This section pertains to fraudulent checks. When enacted by Laws 1953, Chapter 132, it provided that issuance of fraudulent checks was a felony if the check was for $20.00 or more. An amendment in 1961 (Laws 1961, Chapter 206) made a violation of this section a felony if the check was $50.00 or more. Laws 1963, Chapter 315, enacted a new \u201cWorthless Check Act\u201d which is \u00a7 40-49-1 through \u00a7 40-49-9, N.M.S.A.1953. Section 10 of the 1963 law repealed \u00a7 40-21-8, N.M.S.A.1953.\nIn this appeal we are only concerned with \u00a7 40-21-8, N.M.S.A.1953, as it existed in 1956. If defendant\u2019s violation of that section was a felony in 1956, changes in or repeal of the statute subsequent to 1956 do not preclude the use of that conviction in prosecutions under our habitual offender statute. See 19 A.L.R.2d 235.\nAt the time the offense was committed on June 2, 1956, and at the time defendant was convicted on December 5, 1956, it was a felony to issue a fraudulent check in the amount of $20.00 or more. Defendant was convicted under. Count 2 of the information which charged' issuance of a .fraudulent check in .the amount: of $46!50. He was convicted of a felony.\nThe judgment is affirmed. It is so ordered.\nNOBLE and COMPTON, JJ., concur.",
        "type": "majority",
        "author": "JOE W. WOOD, Judge, Court of Appeals."
      }
    ],
    "attorneys": [
      "Nils T. Kjellstrom, Albuquerque, for appellant.",
      "Boston E. Witt, Atty. Gen., James V. Noble, Asst. Atty. Gen., Santa Fe, for appellee."
    ],
    "corrections": "",
    "head_matter": "417 P.2d 805\nSTATE of New Mexico, Plaintiff-Appellee, v. Gordon W. DARRAH, Defendant-Appellant.\nNo. 8108.\nSupreme Court of New Mexico.\nAug. 29, 1966.\nNils T. Kjellstrom, Albuquerque, for appellant.\nBoston E. Witt, Atty. Gen., James V. Noble, Asst. Atty. Gen., Santa Fe, for appellee."
  },
  "file_name": "0671-01",
  "first_page_order": 703,
  "last_page_order": 706
}