{
  "id": 2766078,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Tommy Joe CEBADA, Defendant-Appellant",
  "name_abbreviation": "State v. Cebada",
  "decision_date": "1972-10-13",
  "docket_number": "No. 928",
  "first_page": "306",
  "last_page": "308",
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  "analysis": {
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  "last_updated": "2023-07-14T17:55:55.751115+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "HENDLEY and HERNANDEZ, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Tommy Joe CEBADA, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nSUTIN, Judge.\nCebada was convicted and sentenced for burglary, \u00a7 40A-16-3, N.M.S.A.1953 (2d Repl. Vol. 6), and larceny, \u00a7 40A-16-1, N. M.S.A.1953 (2d Repl.Vol. 6). Cebada appeals.\nWe affirm.\nCebada raises three questions on appeal, (1) the trial court failed to grant Cebada a hearing on his motion for a bill of particulars ; (2) the trial court abused its discretion in setting an appeal bond of $20,000; (3) fundamental error occurred in allowing the charge of larceny to go to the jury.\n(1) Motion for Bill of Particulars\nOn July 30, 1971, Cebada filed a motion for a bill of particulars pursuant to \u00a7 41-6-8, N.M.S.A.1953 (2d Repl.Vol. 6). The case came on for trial November 11, 1971. Between July 30, 1971, and November 11, 1971, the record is barren of any mention of the motion. It was not called to the attention of the trial court nor ruled upon. Before, during or after trial, no claimed error was made. It is apparent that Cebada abandoned his motion. Furthermore, this matter was raised for the first time on appeal. The claimed error is not subject to review. State v. Gray, 79 N.M. 424, 444 P.2d 609 (Ct.App.1968).\nCebada claims, however, \u201cThe trial court erred by failing to grant a hearing on [his] motion for a bill of particulars which should have been granted pursuant to New Mexico Constitution Article II Section 14 and Section 41-6-8(1) and (2), N.M.S.A.1953 Compilation.\u201d Cebada had the right \u201cto demand the nature and cause of the accusations,\u201d but, in order to exercise this right, he must pursue it. Cebada never requested a hearing. The constitutional provision was waived. Compare State v. Graves, 73 N.M. 79, 385 P.2d 635 ; [(1963). Furthermore, we have examined the indictment, and we believe Cebada was sufficiently informed of the charges made to allow him to prepare a defense.\nIt should be pointed out that the New Rules of Criminal Procedure repealed \u00a7 41-6-8, supra. Section 41-23-33 (h), N. M.S.A.1953 (2nd Repl.Vol. 6, Supp.1972) provides:\nAll motions shall be disposed of within a reasonable time after filing. All motions not ruled upon within thirty [30] days after filing shall be deemed denied.\nThis rule is prospective only, and not applicable to this case.\n(2) Discretion in Setting Appeal Bond\nCebada contends that the trial court abused its discretion by setting an excessively high appeal bond in the amount of $20,000 contrary to the Eighth Amendment to the United States Constitution; Article II, Section 13 of the New Mexico Constitution; \u00a7 41-15-2(B), N.M.S.A.1953 (2nd Repl.Vol. 6), and \u00a7 21-2-1(9) (4), N.M.S. A. 1953 (Repl.Vol. 4). On motion, the trial court did reduce the amount of the appeal bond from $35,000 to $20,000. This issue cannot properly be raised by appeal on the merits of the case. In State v. Deats, 82 N.M. 711, 487 P.2d 139 (Ct.App.1971), the court, in a case involving burglary and larceny, said:\nUnder this point defendant points to a $20,000.00 appeal bond which he claims is excessive. Relief on this ground is not appropriately sought in arguments on the merits on appeal.\nIt is suggested that a defendant who seeks relief from a claimed excessive bond should file a motion in this court pursuant to \u00a7 21-2-1(9) (1), N.M.S.A.1953 (Repl. Vol. 4). State v. Lucero, 81 N.M. 578, 469 P.2d 727 (Ct.App.1970); see Welch v. McDonald, 36 N.M. 23, 7 P.2d 292 (1931).\nThe reasons are obvious. (1) The question of an excessive bond pending appeal has no relation to the merits of the appeal. (2) To await determination on the merits usually means a delay of approximately one year. This does not assist the defendant. Defendant might serve all of his sentence prior to appellate review. (3) This is not a claimed error arising during trial which can be raised on appeal. Even if we were to agree that the trial court erred in this respect, \u201cit is not the function of an appellate court to correct errors which have not affected the ultimate decision of the trial court.\u201d State v. Holland, 78 N.M. 324, 431 P.2d 57 (1967). (4) An increase in the amount of the bond after conviction is within the discretion of the trial court. An abuse of discretion occurs when the court exceeds the bounds of reason, all the circumstances before it being considered. Shillinglaw v. Owen Shillinglaw Fuel Company, 70 N.M. 65, 370 P.2d 502 (1962). We cannot say, as a matter of law, that the trial court abused its discretion.\nFor the new rules of bail pending appeal, see \u00a7 41-23-33, N.M.S.A.1953 (2nd Repl. Vol. 6, Supp.1972).\nWe hold that the trial court did not abuse its discretion in setting an appeal bond in the sum of $20,000.\n(3) Allowing the Charge of Larceny to go to the Jury\nCebada claims a lack of substantial evidence to support his conviction for larceny. This error was not preserved for review because at the close of the state\u2019s case, the state rested and Cebada rested without motions for a directed verdict. \u201c[T]he record fails to disclose that the question of the sufficiency of the evidence to support his conviction was ever presented to the trial court.\u201d State v. Sedillo, 81 N.M. 47, 462 P.2d 632 (Ct.App.1969).\nCebada claims fundamental error. This rule is set forth in Sedillo, supra. We have reviewed the testimony and find the rule of fundamental error inapplicable.\nAffirmed.\nIt is so ordered.\nHENDLEY and HERNANDEZ, JJ., concur.",
        "type": "majority",
        "author": "SUTIN, Judge."
      }
    ],
    "attorneys": [
      "Leon Taylor, John E. Brooks, Albuquerque, for defendant-appellant. ....... ......",
      "David L. Nor veil, Atty. Gen., Thomas Patrick Whelan, Jr., Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "502 P.2d 409\nSTATE of New Mexico, Plaintiff-Appellee, v. Tommy Joe CEBADA, Defendant-Appellant.\nNo. 928.\nCourt of Appeals of New Mexico.\nOct. 13, 1972.\nLeon Taylor, John E. Brooks, Albuquerque, for defendant-appellant. ....... ......\nDavid L. Nor veil, Atty. Gen., Thomas Patrick Whelan, Jr., Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
  },
  "file_name": "0306-01",
  "first_page_order": 462,
  "last_page_order": 464
}