{ "id": 1571124, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Alex GARCIA, Defendant-Appellant", "name_abbreviation": "State v. Garcia", "decision_date": "1978-05-15", "docket_number": "No. 11404", "first_page": "664", "last_page": "666", "citations": [ { "type": "official", "cite": "91 N.M. 664" }, { "type": "parallel", "cite": "579 P.2d 790" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "89 N.M. 64", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2866247 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0064-01" ] }, { "cite": "85 N.M. 140", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2768769 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0140-01" ] }, { "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": "558 P.2d 620", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1976, "opinion_index": 0 }, { "cite": "90 N.M. 8", "category": "reporters:state", "reporter": "N.M.", "year": 1976, "opinion_index": 0 }, { "cite": "89 N.M. 729", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2866321 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0729-01" ] }, { "cite": "88 N.M. 90", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2839616 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/88/0090-01" ] }, { "cite": "90 N.M. 291", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2871078 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0291-01" ] }, { "cite": "164 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "118 Ga.App. 448", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 715440 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ga-app/118/0448-01" ] }, { "cite": "24 A.L.R.2d 1247", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1952, "pin_cites": [ { "page": "1252" } ], "opinion_index": 0 }, { "cite": "262 A.2d 238", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1970, "opinion_index": 0 }, { "cite": "109 N.J.Super. 69", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 521301 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nj-super/109/0069-01" ] }, { "cite": "285 F. 447", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3603820 ], "opinion_index": 0, "case_paths": [ "/f/285/0447-01" ] } ], "analysis": { "cardinality": 415, "char_count": 7259, "ocr_confidence": 0.808, "pagerank": { "raw": 1.255626947847341e-07, "percentile": 0.6112246312429798 }, "sha256": "232090f0a88302579897ea6d4c7f29986dad5ec80f62ca2b992c86c9c054e1b8", "simhash": "1:33e4c72a65001e53", "word_count": 1192 }, "last_updated": "2023-07-14T15:07:42.064818+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SOSA and EASLEY, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Alex GARCIA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nFEDERICI, Justice.\nThe defendant was charged in two counts of a single indictment with having committed two armed robberies. Count I of the indictment charged an armed robbery committed \u201con or about the 21st day of September, 1976,\u201d and Count VIII of the indictment charged an armed robbery committed \u201con or about the 22nd day of September, 1976.\u201d The defendant was tried and convicted by jury verdict of both armed robberies in one criminal proceeding in the Bernalillo County District Court. For the September 21st armed robbery charged in Count I of the indictment the trial judge sentenced the defendant to 10 to 50 years in the penitentiary. A firearm enhancement penalty, \u00a7 40A-29-3.1, N.M.S.A.1953 (Supp. 1975), increased this term of imprisonment to 15 to 55 years. For the September 22nd armed robbery charged in Count VIII of the indictment the trial judge sentenced the defendant to life imprisonment. This latter sentence was entered over the objection of defense counsel. The defendant does not challenge the validity of his convictions. Nor does he challenge the 15 to 55 year sentence imposed upon him for the armed robbery charged in Count I of the indictment. This appeal is directed solely to the sentence of life imprisonment imposed upon the defendant for his conviction under Count VIII of the indictment.\nWhether the trial judge acted properly in sentencing the defendant to life imprisonment for his conviction of the September 22nd armed robbery depends upon the meaning of \u00a7 40A-16-2, N.M.S.A.1953 (Supp.1975), under which the defendant was sentenced. Section 40A-16-2 reads:\nRobbery. \u2014 Robbery consists of the theft of anything of value from the person of another or from the immediate control of another, by use or threatened use of force or violence.\nWhoever commits robbery is guilty of a third degree felony.\nWhoever commits robbery while armed with a deadly weapon is, for the first offense, guilty of a second degree felony and, for second and subsequent offenses, is guilty of a first degree felony. (Emphasis added.)\nThe validity of the trial court\u2019s sentence of life imprisonment is determined by the emphasized portion of the above statute. The precise question presented for review is this: May the enhanced penalty provisions of \u00a7 40A-16-2 be invoked against a defendant on the basis of multiple convictions returned under separate counts of a single indictment in one criminal proceeding? The trial judge was of the view that the September 21st armed robbery charged in Count I of the indictment was a \u201cfirst offense\u201d and the September 22nd armed robbery charged in Count VIII of the indictment was a \u201csecond offense\u201d and therefore a first degree felony calling for a sentence of life imprisonment. We do not agree with the trial judge\u2019s interpretation of the statute.\nA more severe punishment on conviction for a second offense is deemed highly penal and therefore must be strictly construed. United States v. Lindquist, 285 F. 447 (W.D.Wash.1921); State v. Johnson, 109 N.J.Super. 69, 262 A.2d 238 (1970). Guided by this rule, the judicial construction of \u201csubsequent offender statutes\u201d similar to the one presented for review in this case has been nearly uniform in its .results. \u201cNumerous cases involve the construction of statutes enhancing the penalty for second and subsequent offenses, and it is generally held (although there is some authority to the contrary), that such statutes are to be construed as meaning that the second offense, in order to be available for the purpose of increasing the penalty, must have been committed subsequently to the commission and conviction of the first offense.\u201d Annot., 24 A.L.R.2d 1247, 1252 (1952); A.L.R.2d Later Case Service 914 (1970 and Supp.1977).\nWe are in accord with the general rule stated above, and hold this to be the meaning of \u00a7 40A-16-2: Any armed robbery offense committed subsequent to a conviction for armed robbery is a first degree felony calling for the enhanced penalty contemplated by the statute. The fact that the defendant was convicted in one criminal proceeding of two armed robberies charged under separate counts of one indictment is not sufficient to invoke the increased penalty provision of the statute. This view is predicated on the premise that such a statute is intended to serve as a warning .to first offenders and to provide increased punishment for those who persist in violations of the law after having been formally convicted. State v. Johnson, supra; Johnson v. State, 118 Ga.App. 448, 164 S.E.2d 353 (1968).\nNew Mexico decisions have considered multiple convictions in relation to an enhanced sentence under our Habitual Offender Act, \u00a7 40A-29-5, N.M.S.A.1953 (Repl.1972). Where multiple convictions occur, and there are no prior felony convictions, none of the sentences is enhanced; rather, the regular sentence is imposed for each of the convictions. State v. Baker, 90 N.M. 291, 562 P.2d 1145 (Ct.App.1977). By analogy, this rule has been applied to other New Mexico \u201csubsequent offender\u201d statutes similar to the one presented for construction in this case. In State v. Ellis, 88 N.M. 90, 537 P.2d 698 (Ct.App.1975), the Court of Appeals had occasion to interpret \u00a7 40A-29-3.1, supra. That statute provided, at the time of the Ellis decision, that whenever a separate finding of fact shows a firearm was used in the commission of any crime constituting a second or subsequent felony, other than a capital felony, the imposition or execution of a sentence was not to be suspended, nor was parole to be granted, unless one-half of the minimum sentence provided for the offense had been served. In Ellis, supra, the Court of Appeals held that for there to be a \u201csecond or subsequent felony\u201d within the terms of this statute there must have been a conviction preceding the commission of the offense to which application of the statute is sought. See also State v. Martinez, 89 N.M. 729, 557 P.2d 578 (Ct.App.1976), cert. denied, 90 N.M. 8, 558 P.2d 620 (1976).\nThe rule announced by us in this case is consistent with New Mexico case law and the vast majority of the cases from other jurisdictions. The judgment of the trial court is reversed as to the sentence imposed upon defendant for his conviction under Count VIII of the indictment. Where an invalid sentence is imposed following a legal conviction, the prisoner is to be directly remanded to the proper court for a valid sentence. French v. Cox, 74 N.M. 593, 396 P.2d 423 (1964). This cause is remanded to the trial court so that defendant may be sentenced as a first offender under the terms of \u00a7 40A-16-2. Nothing in this opinion is intended to preclude , the trial judge from imposing consecutive or concurrent sentences under Counts I and VIII of the indictment as he in his discretion determines. State v. Padilla, 85 N.M. 140, 509 P.2d 1335 (1973); State v. Burrell, 89 N.M. 64, 547 P.2d 69 (Ct.App.1976).\nIT IS SO ORDERED.\nSOSA and EASLEY, JJ., concur.", "type": "majority", "author": "FEDERICI, Justice." } ], "attorneys": [ "Steven H. Schiff, Albuquerque, for defendant-appellant.", "Toney Anaya, Atty. Gen., Michael Eloy Sanchez, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "579 P.2d 790\nSTATE of New Mexico, Plaintiff-Appellee, v. Alex GARCIA, Defendant-Appellant.\nNo. 11404.\nSupreme Court of New Mexico.\nMay 15, 1978.\nSteven H. Schiff, Albuquerque, for defendant-appellant.\nToney Anaya, Atty. Gen., Michael Eloy Sanchez, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0664-01", "first_page_order": 700, "last_page_order": 702 }