472 P.2d 651

#### STATE of New Mexico, Plaintiff-Appellee, v. Victor TAFOYA, Defendant-Appellant.

No. 483.

Court of Appeals of New Mexico.

July 2, 1970.

Jacob Carian, and William C. Bowers, Albuquerque, for defendant-appellant.

James A. Maloney, Atty. Gen., Kenneth A. Cullen, Jr., Asst. Atty. Gen., Santa Fe, for plaintiff appellee.

OPINION

WOOD, Judge.

Defendant moved for post-conviction relief under § 21-1-1(93), N.M.S.A. 1953 (Supp.1969). The claims made in the motion were denied without a hearing. We do not review those claims because none stated a basis for post-conviction relief; defendant does not contend otherwise. Defendant asserts the trial court erred in failing to appoint counsel to represent him in connection with the motion and in denying the motion without a hearing. Since the motion stated no basis for relief, appointment of counsel was not required, State v. Tapia, 80 N.M. 477, 457 P.2d 996 (Ct.App.1969), and the trial court properly denied the motion without a hearing. Nance v. State, 80 N.M. 123, 452 P.2d 192 (Ct.App.1969).

Defendant also makes claims concerning an asserted waiver of proof and double jeopardy. They are raised for the first time in the appeal. Not having been presented to the trial court they will not be considered. State v. Lujan, 79 N.M. 525, 445 P.2d 749 (Ct.App.1968); State v. Sharp, 79 N.M. 498, 445 P.2d 101 (Ct.App.1968); State v. Knerr, 79 N.M. 133, 440 P.2d 808 (Ct.App.1968).

The order denying relief is affirmed.

It is so ordered.

SPIESS, C. J., and HENDLEY, J., concur.