{ "id": 2740270, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Delbert Mac SAWYERS, Defendant-Appellant", "name_abbreviation": "State v. Sawyers", "decision_date": "1968-07-12", "docket_number": "No. 119", "first_page": "557", "last_page": "560", "citations": [ { "type": "official", "cite": "79 N.M. 557" }, { "type": "parallel", "cite": "448 P.2d 978" } ], "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": "74 N.M. 593", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2796447 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0593-01" ] }, { "cite": "77 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2802419 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0001-01" ] }, { "cite": "77 N.M. 4", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2804530 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0004-01" ] }, { "cite": "79 N.M. 263", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2740206 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/79/0263-01" ] }, { "cite": "74 N.M. 659", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2804640 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0659-01" ] }, { "cite": "79 N.M. 179", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2747359 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0179-01" ] }, { "cite": "77 N.M. 52", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2808662 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0052-01" ] }, { "cite": "75 N.M. 417", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5377232 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/75/0417-01" ] }, { "cite": "74 N. M. 182", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2798561 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0182-01" ] }, { "cite": "76 N.M. 111", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8500657 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0111-01" ] }, { "cite": "59 N.M. 112", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1589287 ], "weight": 2, "year": 1955, "opinion_index": 0, "case_paths": [ "/nm/59/0112-01" ] }, { "cite": "59 N.M. 284", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1589292 ], "weight": 2, "year": 1955, "opinion_index": 0, "case_paths": [ "/nm/59/0284-01" ] } ], "analysis": { "cardinality": 438, "char_count": 9959, "ocr_confidence": 0.665, "pagerank": { "raw": 9.356698607941946e-08, "percentile": 0.5141172323174054 }, "sha256": "aaaa834b75500e7ee73db3d4e83b8107278ddaff96aa529d5261bf5c5856a413", "simhash": "1:08b4e57c34ca9d60", "word_count": 1679 }, "last_updated": "2023-07-14T18:21:18.946358+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SPIESS, C. J., and OMAN, J., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Delbert Mac SAWYERS, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nDefendant attacks the sentence imposed upon him for violating \u00a7 64-10-1, N.M.S.A. 1953, which reads:\n\u201cAny person who fraudulently uses a false or fictitious name in any application for the registration of a vehicle or a certificate of title, or knowingly makes a false statement, or knowingly conceals a material fact, or otherwise commits a fraud in any such application shall upon conviction be punished by a fine of not more than $1,000 or by imprisonment for not more than one [1] year or both.\u201d\nThe sentence provides that defendant \u201c * * * be confined in the Santa Fe County Jail at Santa Fe, New Mexico, for a period of not less than one (1) year and not more than one (1) year.\u201d In addition defendant was ordered to pay a fine of $1,000.00 on or before the termination date of the one year sentence.\nDefendant contends: (1) Any sentence of imprisonment for violating \u00a7 64 \u2014 10-1, supra, is void. (2) The sentence of not less than one year and not more than one year is void. (3) Sentence to confinement in the county jail for any period in excess of six months is void.\nIs any sentence of imprisonment for violating \u00a7 64 \u2014 10\u20141, supra, void?\nDefendant claims the portion of \u00a7 64 \u2014 10\u2014 1, supra, which provides for a sentence of imprisonment has been repealed by implication and thus any sentence of imprisonment for violating this section is void.\nSection 64-10-1, supra, was enacted by N.M.Laws 1953, ch. 138, \u00a7 94. Section 64-10-7, N.M.S.A.1953 is a part of the same act. N.M.Laws 1953, ch. 138, \u00a7 114. Section 64 \u2014 10-7, supra, declared that it was a misdemeanor to violate any of the provisions of the act \u201c * * * unless such violation is by this act or other law of this state declared to be a felony * * *.\u201d (our emphasis.)\nAt the time of enactment of \u00a7 64 \u2014 10-1, supra, and \u00a7 64 \u2014 10-7, supra, a felony was defined to include an offense which \u201c * * * may be punishable by imprisonment in the penitentiary * * *.\u201d N.M. Laws 1853-1854, p. 82; Code 1915, \u00a7 1452, now repealed. The place of confinement for violation of \u00a7 64 \u2014 10-1 is discussed subsequently in this opinion. At this point we assume that confinement could be in the penitentiary. Thus, at the time of enactment, by \u201cother law of this state\u201d, violation of \u00a7 64 \u2014 10-1, supra, was a felony. Compare State v. Klantchnek, 59 N.M. 284, 283 P.2d 619 (1955).\nSection 64 \u2014 10-7, supra, was amended by N.M.Laws 1961, ch. 185, \u00a7 1. See \u00a7 64-10-7, N.M.S.A.1953 (Supp.1967). As amended, \u00a7 64\u2014 10-7(A) provides:\n\u201cIt is a misdemeanor for any person to violate any provision of the Motor Vehicle Code unless the violation is declared a felony.\u201d\nThe amendment deleted the reference to \u201cother law of this state;\u201d as amended, violation of any provision of the Motor Vehicle Code is a misdemeanor \u201c * * * unless the violation is declared a felony * * *.\u201d Violation of \u00a7 64 \u2014 10-1, supra, is not declared to be a felony; violation of that section is now a misdemeanor.\nSection 40A-1-6, N.M.S.A.1953 classifies a crime as a felony if \u201c * * * imprisonment for a term of one [1] year or more is authorized * * Since \u00a7 64-10-1, supra, authorizes imprisonment for a term of one year, which defendant asserts is a felony classification, defendant contends that the imprisonment provision was repealed by implication by the amendment to \u00a7 64-10-7, supra, which classifies a violation of \u00a7 64\u201410-1, supra, as a misdemeanor.\nDefendant\u2019s contention overlooks a specific provision of \u00a7 64\u201410-7, supra, as amended. Paragraph B of that section states:\n\u201cUnless another penalty is specified in the Motor Vehicle Code, every person convicted of a misdemeanor for violation of any provision of the Motor Vehicle Code shall be punished by a fine of not more than one hundred dollars ($100) or by imprisonment for not. more than ninety [90] days, or both.\u201d\nBy this section, a person convicted of a misdemeanor for violation of the Motor Vehicle Code is to be punished by a fine of not more than $100, imprisonment for not more than 90 days or both, \u201c * * * [u]nless another penalty is specified in the Motor Vehicle Code * * The amendment thus recognized that other penalties may be specified. Section 64-10-1, supra, specifies such a penalty. It authorizes imprisonment for not more than one year.\nState v. Valdez, 59 N.M. 112, 279 P.2d 868 (1955) states the doctrine of repeal by implication as follows:\n\u201c * * * where two statutes have the same object and relate to the same subject, if the later act is repugnant to the former, the former is repealed by implication to the extent of the repugnancy, * * *.\u00bb\nSee State v. Lujan, 76 N.M. 111, 412 P.2d 405 (1966); In re Sosa\u2019s Petition, 74 N. M. 182, 392 P.2d 14 (1964).\nAlthough as amended, \u00a7 64-10-7, supra, classifies a violation of \u00a7 64-10-1, supra, as a misdemeanor, this classification is not repugnant to the imprisonment authorized by \u00a7 64-10-1. Section 64\u201410-7, as amended, recognizes that a penalty for a misdemeanor violation may be specified that differs from the general misdemeanor penalty. Rather than being repugnant, \u00a7 64\u2014 10-7, as amended, is reconcilable with \u00a7 64\u2014 10-1, supra. The- doctrine of. repeal by implication is not applicable.\nIs the sentence of not less than one year \u25a0 and not more than one year void?\nAs previously stated, violation of \u00a7 64-10-1, supra, is now a misdemeanor. Section 40A-1-6, supra, provides that a c-rime - is a misdemeanor if imprisonment is' au- \u25a0 thorized in excess of six months but less \u25a0 than one year. Section 40A-29-4, \u25a0 supra, authorizes a sentence for a misdemeanor \u201c * * * for a definite term less than one (1) year * * Since both sections refer to a sentence of less than one year, and since defendant\u2019s sentence is for not less than one year, defendant contends that \u00a7 40A-1-6 and \u00a7 40A-29-4 made this portion of his sentence void.\nThere are two answers to this contention. First, \u00a7 40A-1-6, supra, and \u00a7 40A-29^1, supra, refer generally to the sentence for misdemeanors; \u00a7 64-10-1,' supra, the statute which defendant violated, provides a specific sentence for that misdemeanor. If the general statute, standing alone, would include the same matter as the special statute and thus conflict with the special statute, the special statute controls since it is considered an exception to the general statute. State v. Lujan, supra; Martinez v. Cox, 75 N.M. 417, 405 P.2d 659 (1965); see Lopez v. Barreras, 77 N.M. 52, 419 P.2d 251 (1966) ; Cromer v. J. W. Jones Construction Co., Inc., 79 N.M. 179, 441 P.2d 219, decided May 3, 1968.\nSecond, \u00a7 40A-1-6 and \u00a7 40A-29-4 are sections of our Criminal Code. See \u00a7 40A-1-1, N.M.S.A.1953. Section 64-10-1 is not a part of the Criminal Code. Section 40A-29-11, N.M.S.A.1953 provides in part:\n\u201cWhenever a defendant is convicted of a crime under * * * a statute not contained in the Criminal Code, which specifies the penalty to be imposed on conviction, the court shall have the power to pronounce sentence * * * in accordance with the provisions prescribed by such statute * *\nDefendant\u2019s sentence was not void because of the provisions of \u00a7 40A-1-6 and \u00a7 40A-29-4, supra.\nDefendant also contends that the \u201cnot less than one year\u201d portion of his sentence is void because it is in excess of the court\u2019s sentencing authority. We agree. Section 64-10-1, supra, does not provide for a minimum sentence. Sentences which are unauthorized by law are void. Sneed v. Cox, 74 N.M. 659, 397 P. 2d 308 (1964).\nThe \u201cnot more than one year\u201d portion of the sentence is authorized by \u00a7 64-10-1, supra. Sneed v. Cox, supra, states:\n\u201cThe minimum, not being provided by law, was void, but being separable from the maximum which conformed to law, the maximum was legal * *\nIs the sentence to confinement in the county jail void ?\nAlthough defendant\u2019s maximum sentence of \u201cnot more than one year\u201d is legal, this sentence was to be served in the county jail. The question is whether the county jail is the proper place of confinement when such a sentence has been imposed.\nThe place of confinement for misdemeanors under the Criminal Code is the county jail. Section 40A-29-4, supra. This section is not applicable because defendant violated \u00a7 64 \u2014 10-1, supra, which is not a Criminal Code misdemeanor.\nSection 42-1-37, N.M.S.A.1953, provides in part:\n\u201c * * ap persons convicted of any crime, where the punishment is imprisonment for a term or time exceeding six (6) months, shall be imprisoned in the penitentiary, * *\nWith exceptions not applicable here, \u00a7 40A-29-13, N.M.S.A.1953 provides:\n\u201cPersons sentenced to imprisonment for a term of one [1] year or more shall be imprisoned in the state penitentiary ifc \u00ed}\u00ed i}: ff\nSince defendant has a valid maximum sentence of not more than one year, he may be confined, under that sentence, up to one full year. Thus, under either \u00a7 42-1-37 or \u00a7 40A-29-13 the proper place of his confinement is the state penitentiary. Accordingly, we do not consider the relationship of \u00a7 42-1-37 to \u00a7 40A-29-13.\nDefendant\u2019s sentence is improper because of an unauthorized minimum sentence and because of a place of confinement contrary to law. However, his appeal does not attack his conviction based on his guilty plea. Accordingly, the cause is remanded with directions to the trial court to vacate the present sentence and impose a new sentence in conformity with the views set forth herein. Compare State v. Soliz, 79 N.M. 263, 442 P.2d 575, decided June 10, 1968; State v. Dalrymple, 77 N.M. 4, 419 P.2d 218 (1966); State v. Tipton, 77 N.M. 1, 419 P.2d 216 (1966); French v. Cox, 74 N.M. 593, 396 P.2d 423 (1964),\nIt is so ordered.\nSPIESS, C. J., and OMAN, J., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "Earl E. Hartley, Hartley, Olson & Baca, Albuquerque, for defendant-appellant.", "Boston E. Witt, Atty. Gen., Donald W. Miller, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "448 P.2d 978\nSTATE of New Mexico, Plaintiff-Appellee, v. Delbert Mac SAWYERS, Defendant-Appellant.\nNo. 119.\nCourt of Appeals of New Mexico.\nJuly 12, 1968.\nRehearing Denied Sept. 30, 1968.\nEarl E. Hartley, Hartley, Olson & Baca, Albuquerque, for defendant-appellant.\nBoston E. Witt, Atty. Gen., Donald W. Miller, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0557-01", "first_page_order": 589, "last_page_order": 592 }