{ "id": 2764665, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Deluvino BLEA, Defendant-Appellant", "name_abbreviation": "State v. Blea", "decision_date": "1973-01-26", "docket_number": "No. 958", "first_page": "595", "last_page": "600", "citations": [ { "type": "official", "cite": "84 N.M. 595" }, { "type": "parallel", "cite": "506 P.2d 339" } ], "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": "58 N.M. 37", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587526 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/nm/58/0037-01" ] }, { "cite": "417 P.2d 853", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1966, "opinion_index": 0 }, { "cite": "69 Wash.2d 177", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1057137 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/wash-2d/69/0177-01" ] }, { "cite": "211 N.Y.S.2d 812", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1961, "opinion_index": 0 }, { "cite": "13 A.D.2d 559", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 5826341, 5831463 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ad2d/13/0559-02", "/ad2d/13/0559-01" ] }, { "cite": "168 A.2d 49", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1961, "opinion_index": 0 }, { "cite": "65 N.J.Super. 421", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 504902 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nj-super/65/0421-01" ] }, { "cite": "276 N.E.2d 840", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "457 F.2d 1198", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 734006 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/f2d/457/1198-01" ] }, { "cite": "233 F.2d 362", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 82363, 3764767 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/f2d/233/0362-01" ] }, { "cite": "98 U.S.App.D.C. 160", "category": "reporters:state", "reporter": "U.S. App. D.C.", "case_ids": [ 3764767 ], "year": 1956, "opinion_index": 0, "case_paths": [] }, { "cite": "99 Cal.Rptr. 681", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1972, "opinion_index": 0 }, { "cite": "22 Cal.App.3d 786", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 4436031 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/cal-app-3d/22/0786-01" ] }, { "cite": "249 Ark. 208", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718551 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/ark/249/0208-01" ] }, { "cite": "107 Ariz. 231", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 4212136 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/ariz/107/0231-01" ] }, { "cite": "80 N.M. 247", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5353731 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/80/0247-01" ] }, { "cite": "52 A.L.R. 51", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1927, "opinion_index": 1 }, { "cite": "111 So. 801", "category": "reporters:state_regional", "reporter": "So.", "year": 1927, "opinion_index": 1 }, { "cite": "93 Fla. 415", "category": "reporters:state", "reporter": "Fla.", "case_ids": [ 1276007 ], "year": 1927, "opinion_index": 1, "case_paths": [ "/fla/93/0415-01" ] }, { "cite": "12 Ariz.App. 398", "category": "reporters:state", "reporter": "Ariz. App.", "case_ids": [ 1211151 ], "weight": 2, "year": 1970, "opinion_index": 1, "case_paths": [ "/ariz-app/12/0398-01" ] }, { "cite": "83 Nev. 53", "category": "reporters:state", "reporter": "Nev.", "case_ids": [ 4901398 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "549" } ], "opinion_index": 1, "case_paths": [ "/nev/83/0053-01" ] }, { "cite": "80 N.M. 663", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5361811 ], "weight": 3, "pin_cites": [ { "page": "666" }, { "page": "465" } ], "opinion_index": 1, "case_paths": [ "/nm/80/0663-01" ] }, { "cite": "77 N.M. 528", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2803177 ], "weight": 2, "year": 1967, "opinion_index": 1, "case_paths": [ "/nm/77/0528-01" ] }, { "cite": "78 N.M. 286", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5320188 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/78/0286-01" ] }, { "cite": "75 N.M. 197", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5375493 ], "weight": 3, "year": 1965, "opinion_index": 1, "case_paths": [ "/nm/75/0197-01" ] } ], "analysis": { "cardinality": 656, "char_count": 13075, "ocr_confidence": 0.688, "pagerank": { "raw": 2.421670259399965e-07, "percentile": 0.8010835766872895 }, "sha256": "bb6be06e96d5a1dd5ad6a8648b7e6cd757c9b4d4da778417d8594e96b01bd925", "simhash": "1:d4f679fbf1fc5530", "word_count": 2271 }, "last_updated": "2023-07-14T17:55:55.751115+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ, J., concurs.", "SUTIN, J., dissents." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Deluvino BLEA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nHENDLEY, Judge.\nConvicted of statutory rape, aggravated battery and battery, defendant appeals asserting that it was error to sentence him pursuant to \u00a7 40A-29-3.1(A), N.M.S.A. 1953 (Repl.Vol.1964, Supp.1969) because: (1) he was denied the right to be tried by a jury on the issue of using a firearm; and, (2) he was not charged in the indictment with violating the above statute.\nSection 40A-29-3.1 (A), supra, states:\n\u201cWhen a separate finding of fact by the court or jury shows that a firearm was used in the commission of:\n\u201cA. murder other than murder in the firt degree, rape, statutory rape, rape of a child, sexual assault, escape from jail, escape from penitentiary, escape from custody of a peace officer or assault by prisoner, the minimum and maximum terms of imprisonment prescribed by the Criminal Code shall each be increased by-five [5] years; ...\u201d\nAfter receiving the verdict on January 11, 1972, and prior to sentencing on January 24, 1972, the state filed a motion based on \u00a7 40A-29-3.1 (A), supra, requesting the court to make a specific finding on the question of whether a firearm was used in the commission of the crime of statutory rape. Immediately prior to sentencing on January 24, 1972, the following colloquy occurred:\n\u201cTHE COURT: ... On your [state\u2019s] motion I will find that a firearm was used in the commission of the crime, and he will be sentenced in accordance with 40a-29-3-l [sic], which I take it increases the punishment by five years.\n\u201cMR. RIORDAN: Yes, five years on the minimum and five years on the maximum.\n\u201cMR. CHAPPELL: May I have the record note an objection to a finding by the court of a question of fact in a jury trial. I believe after looking at the problem that all issues of fact must be determined by the jury, and we object to this procedure on that point.\n\u201cTHE COURT: Mr. Chappell, I may be incorrect, but I thought you agreed it would be brought up in sentencing rather than giving an interrogatory to the jury.\n\u201cMR. CHAPPELL: I believe I did not know the procedure at that time with regard to the statute. I know Mr. Riordan [prosecutor] did submit a special interrogatory to the court and I believe Your Honor said it was a matter for sentencing.\u201d\nThe transcript of the trial is silent as to what had transpired previously and, accordingly, the issue of waiver is not involved. The questions to be answered arc: First, did the making of a finding of fact by the court in a criminal jury trial deprive the defendant of his right to trial by jury? Second, did the failure of the state to charge the defendant in the indictment with the use of a firearm in the commission of statutory rape deprive him of his right to know the nature and cause of the accusation against him? We answer both questions in the affirmative.\nAlthough not cited to any other state\u2019s decision, we have found cases from nine other jurisdictions dealing with one or the other of these issues. State v. Tosatto, 107 Ariz. 231, 485 P.2d 556 (1971); Johnson v. State, 249 Ark. 208, 458 S.W.2d 409 (1970); People v. Spencer, 22 Cal.App.3d 786, 99 Cal.Rptr. 681 (1972); Jordan v. United States District Court for Dist. of Col., 98 U.S.App.D.C. 160, 233 F.2d 362 (1956); United States v. Sudduth, 457 F.2d 1198 (10th Cir. 1972); Moore v. State, 276 N.E.2d 840 (Ind.1972); State v. Buffa, 65 N.J.Super. 421, 168 A.2d 49 (1961); People ex rel. DeFazio v. La Vallee, 13 A.D.2d 559, 211 N.Y.S.2d 812 (1961); State v. Coma, 69 Wash.2d 177, 417 P.2d 853 (1966).\nThe authorities are not uniform. Some jurisdictions permit the court to make the finding; some do not. With the exception of the Arkansas decision, State v. Johnson, supra, we have found none of the reasoning in any of these cases persuasive in favor of either result. Indeed, some of the above cases have reached a result without either citing relevant authority or giving reasons.\nThe Arkansas Supreme Court in Johnson v. State, supra, held that where the defendant was not charged with the use of a firearm in the information and the trial court made a separate finding that defendant was armed when committing the crime for purposes of enhancing defendant\u2019s sentence, that the accused was denied his rights to a jury trial and to be informed of the nature and cause of the accusation against him. We agree with this result.\nFinding of Fact.\nThe question to be answered under this point is: Does \u00a7 40A-29-3.1(A), supra, define a new class of \u201carmed\u201d crime by adding the additional element of use of a firearm in the commission of the crime to the basic statutory definitions of the crimes listed in that section? We hold that it does.\nWe see no basic distinction between the situation created by reading \u00a7 40A-29-3.-1(A), supra, in conjunction with the statutes which define the basic crimes listed in that section and the distinctions between robbery and armed robbery and burglary and aggravated burglary which are presently maintained in our Criminal Code [see \u00a7\u00a7 40A-16-2, 40A-16-3 and 40A-164, N. M.S.A.1953 (2nd Repl.Vol. 1972)]. In each of the foregoing statutes, the fact of being armed with a deadly weapon creates a different class of criminal activity and a different and more severe penalty is imposed upon conviction. A new element is added and additional proof is required.\nAccordingly, we hold that \u00a7 40A-29-3.1(A), supra, defines a new class of crimes by adding a new element to the basic definitions of the crimes listed in \u00a7 40A-29-3.1(A), supra. The new element added to each crime in the class is the use of a firearm. As the language of \u00a7 40A-29-3.1(A), supra, itself makes clear the existence of this element requires a finding of fact. In a jury trial, such a finding can only be made by the jury. N. M.Const. Art. II, \u00a7 12.\nThe Indictment.\nThe purpose of an indictment or information is: First, to furnish an accused with such a description of the charge against him as will enable him to make his defense and to avail himself of his conviction or acquittal against a subsequent prosecution for the same offense; and second, that the court may be informed as to the facts alleged so it may determine whether the facts are sufficient to support a conviction, if one should be had. Ex parte Williams, 58 N.M. 37, 265 P.2d 359 (1954); N.M.Const. Art. II, \u00a7\u00a7 14 and 15.\nAn indictment or information is valid and sufficient if it charges in one or more of the following ways: (1) By using the name given to the offense by the common law or by a statute; (2) by stating so much of the definition of the offense, either in terms of the common law or of the statute defining the offense or in terms of substantially the same meaning, as is sufficient to give the court and the defendant notice of what offense is intended to be charged; or (3) by referring to a section or subsection of any statute creating the offense charged therein. Section 41-6-7, N.M. S.A. 1953 (2nd Repl.Vol. 1972).\nHaving decided that \u00a7 40A-29-3.-1(A), supra, creates a new class of crimes, it is clear that a defendant must be so charged in the indictment so as to enable him to prepare his defense to that crime. Defendant then has the right to have all the issues of fact, including whether or not a firearm was used in the commission of the crime, determined by the jury or, in the event jury trial is waived, by the court as the fact finder. This is consistent with the wording of \u00a7 40A-29-3.1, supra, \u201cWhen a separate finding of fact by the court or jury. . . . \u201d\nIn the instant case, defendant was. charged in the indictment only with statutory rape [\u00a7 40A-9-3, N.M.S.A.1953 (2nd Repl.Vol. 1972)], not with the new crime of armed statutory rape created by reading \u00a7 40A-9-3, supra, together with \u00a7 40A-29-3.-1(A), supra. Since the indictment only charged defendant with statutory rape, that was the only crime for which he could constitutionally be tried. The error was compounded when the defendant was found guilty of the new crime of armed statutory rape by virtue of a finding of fact made by the court rather than the jury. This deprived defendant of his right to trial by jury.\nThat part of the judgment and sentence relating to the enhanced penalty for statutory rape with use of a firearm is set aside and the cause is remanded to the trial court for resentencing in accordance with the statute.\nIt is so ordered.\nHERNANDEZ, J., concurs.\nSUTIN, J., dissents.", "type": "majority", "author": "HENDLEY, Judge." }, { "text": "SUTIN, Judge\n(dissenting).\nSection 40A-29-3.1(A), N.M.S.A.1953 (Repl.Vol.1964, Supp.1969), set out in the majority opinion, merely increases the penalty to be imposed by \u201ca separate finding of fact\u201d after conviction and before judgment and sentence are imposed. It does mot provide a new or separate crime which ;grants a defendant trial by jury. See, State v. Knight, 75 N.M. 197, 402 P.2d 380 (1965); State v. Silva, 78 N.M. 286, 430 P.2d 783 (Ct.App.1967).\n\u25a0 The uniform practice in the second judicial district is to enter, after conviction, a printed form pleading called \u201cJudgment and Sentence.\u201d By conviction in this case is meant the establishment of guilt by a verdict of the jury. State v. Larranaga, 77 N.M. 528, 424 P.2d 804 (1967). Before '\u201cJudgment and Sentence\u201d was entered, the trial court found that a firearm was used 'in the commission of the crime of statutory jape.\nFirst, defendant contends the increase of the minimum and maximum sentence by five years denied him the right to trial by jux-y. This claim of error has no merit. The imposition of a sentence or increase in the penalty is not an essential element of the crime of statutory rape. \u201cA sentence is not an element of the conviction; rather, the sentence is a consequence of the conviction.\u201d State v. Ferris, 80 N.M. 663, 666, 459 P.2d 462, 465 (Ct.App.1969). The defendant had a trial by jury on the merits. He was not denied this right.\nA \u201cseparate finding of fact\u201d for an increased penalty is made from all the evidence introduced at the trial. The defendant was denied the right to a jui-y detei-mination of this finding.\nThe issxte is: Did the denial of jury determination of \u201ca separate finding of fact\u201d after conviction prevent the imposition of ..an increased penalty?\nIn my opinion, the defendant waived this question. The record shows that at the time for presentation to the court by the district attorney of a special interrogatory, defendant\u2019s counsel stated he did not know the procedure at that time. When the trial court announced it was a matter for sentencing, no objections were made. Defendant had notice before conviction of the additional penalty. No request was made by defendant that the special interrogatory be submitted to the jury. Such requirement can be waived expressly or by implication. See, State v. Knight, supra.\nBecause of the importance of the question, the answer should be found. In the nine jurisdictions set forth in the majority opinion, none of the states, nor the United States, had statutes comparable with \u00a7 40A-29-3.1(A), supra. None of the opinions are applicable.\nThe language of the statute is clear that \u201ca separate finding of fact\u201d can be made by \u201cthe court or jury.\u201d It does not say \u201cthe court and jury,\u201d nor \u201cthe judge and jury.\u201d\nWhere the statute provides that \u201cthe court shall determine the issue,\u201d it means the \u201cjudge\u201d and not the \u201cjudge and jury.\u201d Howard v. State, 83 Nev. 53, 422 P.2d 548, 549 (1967); Campbell v. Superior Court, In and For County of Gila, 12 Ariz.App. 398, 470 P.2d 718 (1970).\nThe woi'd \u201cor\u201d as used above means that the \u2022 legislature granted an alternative choice in the determination of the special finding of fact. It may be done by the judge, who presides over the trial, or, if he chooses, or is requested to do so, he may submit the determination to the jury. This is the legislative intent. Pompano Horse Club v. State, 93 Fla. 415, 111 So. 801, 52 A.L.R. 51 (1927). If the legislature had intended a different construction, it would have used language similar to that in Supreme Court Rule 35(a)(2) [\u00a7 41-23-35(a)(2), N.M.S.A.1953 (2nd Repl.Vol. 6, Supp.1972) :\n. . . [T]he issue shall be determined in nonjury trials by the court and in jury trials by a special verdict of the jury.\nThe trial judge made a separate finding of fact that the defendant used a firearm in the commission of statutory rape. This was in accord with the statute.\nSecond, the defendant contends that since he was not charged in the indictment with a violation of \u00a7 40A-29-3.1(A), supra, the trial court erred in imposing the additional penalty.\nSince the indictment was sufficient without reference to the penalty, any reference to the penalty in the indictment is surplus-age. State v. Ferris, supra; State v. Garcia, 80 N.M. 247, 453 P.2d 767 (Ct.App.1969).\nThe judgment and sentence of the trial court should be affirmed.", "type": "dissent", "author": "SUTIN, Judge" } ], "attorneys": [ "Bill Chappell, Jr., James A. Branch, Jr., Branch & Dickson, Albuquerque, for defendant-appellant.", "David L. Norvell, Atty. Gen., Winston Roberts-Hohl, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "506 P.2d 339\nSTATE of New Mexico, Plaintiff-Appellee, v. Deluvino BLEA, Defendant-Appellant.\nNo. 958.\nCourt of Appeals of New Mexico.\nJan. 26, 1973.\nBill Chappell, Jr., James A. Branch, Jr., Branch & Dickson, Albuquerque, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Winston Roberts-Hohl, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0595-01", "first_page_order": 751, "last_page_order": 756 }