{ "id": 1568766, "name": "STATE of New Mexico, Plaintiff-Appellant, v. Joseph D. MONTOYA, Defendant-Appellee", "name_abbreviation": "State v. Montoya", "decision_date": "1979-01-02", "docket_number": "No. 3681", "first_page": "346", "last_page": "348", "citations": [ { "type": "official", "cite": "93 N.M. 346" }, { "type": "parallel", "cite": "600 P.2d 292" } ], "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": "90 N.M. 249", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2874228 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0249-01" ] }, { "cite": "82 N.M. 345", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5325851 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0345-01" ] }, { "cite": "82 N.M. 525", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5330527 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0525-01" ] }, { "cite": "76 N.M. 111", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8500657 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0111-01" ] }, { "cite": "40 N.M. 367", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842073 ], "weight": 2, "year": 1936, "opinion_index": 0, "case_paths": [ "/nm/40/0367-01" ] }, { "cite": "85 N.M. 208", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2772333 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0208-01" ] }, { "cite": "90 N.M. 260", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2873074 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0260-01" ] }, { "cite": "99 L.Ed. 719", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1955, "opinion_index": 0 }, { "cite": "75 S.Ct. 300", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1955, "opinion_index": 0 }, { "cite": "348 U.S. 917", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6950406, 6950313, 6950386, 6950356, 6950298, 6950333 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/us/348/0917-06", "/us/348/0917-02", "/us/348/0917-05", "/us/348/0917-04", "/us/348/0917-01", "/us/348/0917-03" ] }, { "cite": "58 N.M. 682", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587583 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/nm/58/0682-01" ] }, { "cite": "88 N.M. 333", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2837873 ], "weight": 4, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0333-01" ] }, { "cite": "88 N.M. 5", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2836585 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0005-01" ] }, { "cite": "90 N.M. 608", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2867349 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0608-01" ] }, { "cite": "88 N.M. 125", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2840282 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0125-01" ] }, { "cite": "88 N.M. 227", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2840007 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/88/0227-01" ] }, { "cite": "88 N.M. 627", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2838266 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0627-01" ] } ], "analysis": { "cardinality": 423, "char_count": 8467, "ocr_confidence": 0.783, "pagerank": { "raw": 4.947487136851577e-08, "percentile": 0.31060247141821784 }, "sha256": "edc69807a2f870ae5bf91bdca64d45d60e3194a0362a36b23ec1d5c339e71eca", "simhash": "1:a33c65664e5c2171", "word_count": 1324 }, "last_updated": "2023-07-14T15:53:36.909287+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ and LOPEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellant, v. Joseph D. MONTOYA, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nThis appeal, from the trial court\u2019s dismissal of the indictment, presents issues concerning: (1) double jeopardy, and (2) jurisdiction of the trial court.\nA delinquency petition was filed in the Children\u2019s Court alleging: (a) D.W.I. (driving while under the influence of intoxicating liquor or drugs), (b) reckless driving, (c) involuntary manslaughter, and (d) homicide by vehicle. During the trial on these charges before a Children\u2019s Court jury, defendant\u2019s motion for a mistrial was granted. Thereafter, the Children\u2019s Court dismissed allegations (a), (b) and (d) with prejudice. The State filed a nolle prosequi as to allegation (c).\nSubsequently, defendant was indicted. The indictment charged three of the allegations in the Children\u2019s Court petition\u2014 items (a), (b) and (d). The indictment did not charge item (c) \u2014 involuntary manslaughter.\nDefendant\u2019s motion to dismiss the indictment was granted. The trial court found that the four allegations in the Children\u2019s Court petition and the three charges in the indictment \u201call related to one and the same matter, a collision between an automobile and a motor cycle\u201d. The trial court concluded:\nB. The Defendant, Jospeh [sic] D. Montoya was in jeopardy in the Children\u2019s Court at least as to the charge of Involuntary Manslaughter contained in the Petition filed in Children\u2019s Court Cause J-77-167.\nC. It would constitute double jeopardy for him to be required to stand trial on the three charges contained in the Indictment filed herein.\nD. The District Court does not have jurisdiction over the Defendant for the purpose of trying him on the Indictment filed herein, there having been no transfer ordered by the Children\u2019s Court although evidence had been heard in Children\u2019s Court and the charges contained in the Indictment being \u201cbased upon the conduct alleged in the Petition\u201d filed therein.\nDouble Jeopardy\nDefendant was over fifteen years of age at the time he allegedly committed the various offenses. Defendant recognizes that the Children\u2019s Court lacked jurisdiction over the D.W.I., reckless driving, and vehicular homicide offenses. Sections 32-1-3(N) and 32-1-48, N.M.S.A.1978; Doe v. State, 88 N.M. 627, 545 P.2d 93 (Ct.App.1976). Because the Children\u2019s Court lacked subject matter jurisdiction, defendant does not claim that the D.W.I., reckless driving, and vehicular homicide charges in the indictment were barred by Children\u2019s Court proceedings involving those charges. State v. Mabrey, 88 N.M. 227, 539 P.2d 617 (Ct.App.1975); see State v. Peavler, 88 N.M. 125, 537 P.2d 1387 (1975).\nDefendant\u2019s contention is that the prosecution of the three charges in the indictment was barred, under double jeopardy concepts, because of the Children\u2019s Court proceedings involving the involuntary manslaughter allegation.\nFirst, defendant asserts double jeopardy applies because the Children\u2019s Court improperly granted a mistrial. It is unnecessary to answer this contention; however, we note that the mistrial was granted on defendant\u2019s motion. See State v. Castrillo, 90 N.M. 608, 566 P.2d 1146 (1977).\nSecond, defendant contends that State v. Tanton, 88 N.M. 5, 536 P.2d 269 (Ct.App.1975) bars prosecution of the indictment. That Court of Appeals opinion was reversed by the Supreme Court. See State v. Tanton, 88 N.M. 333, 540 P.2d 813 (1975). The \u201csame evidence\u201d test for double jeopardy, stated in State v. Tanton, 88 N.M. 333, 540 P.2d 813, supra, is whether the facts offered in support of one offense would sustain a conviction of the other offense. As explained in Owens v. Abram, 58 N.M. 682, 274 P.2d 630 (1954), cert. denied, 348 U.S. 917, 75 S.Ct. 300, 99 L.Ed. 719 (1955): \u201cIf either information requires the proof of facts to support a conviction which the other does not, the offenses are not the same and a plea of double jeopardy is unavailing.\u201d See State v. Sandoval, 90 N.M. 260, 561 P.2d 1353 (Ct.App.1977).\nThe indictment charged D.W.I. and reckless driving. Obviously, the trial court\u2019s double jeopardy ruling was incorrect as to these charges because neither involves a death, while involuntary manslaughter does involve a death.\nThe indictment charged vehicular homicide either by driving while under the influence of intoxicating liquor or by reckless driving. Involuntary manslaughter does not require proof of either of these alternatives; the vehicular homicide charge does require proof of at least one of the alternatives. The same evidence test was not met and double jeopardy did not bar prosecution of the charges in the indictment.\nThere is another reason why the trial court\u2019s double jeopardy ruling was erroneous. Since enactment of Laws 1969, ch. 138, \u00a7 1, New Mexico has had a specific statute concerning homicide by vehicle. This statute is compiled as \u00a7 66-8-101, N.M.S.A.1978. The statute applies when the vehicular killing is while driving under the influence of intoxicating liquor, while driving under the influence of drugs, or while driving recklessly. See State v. Trujillo, 85 N.M. 208, 510 P.2d 1079 (Ct.App.1973). As stated in the commentary to U.J.I. Crim. 2.60:\nThe statute for homicide by vehicle controls over the general, involuntary manslaughter statute and must be used. See State v. Blevins, 40 N.M. 367, 60 P.2d 208 (1936); State v. Lujan, 76 N.M. 111, 412 P.2d 405 (1966).\nNeither the trial court\u2019s findings nor the partial transcripts on appeal inform us whether the specific vehicular homicide statute was applicable to the facts of this case. The trial court went no further than to find that the allegations in the Children\u2019s Court petition and the charges in the indictment \u201call related to one and the same matter,\u201d an automobile-motorcycle collision. Defendant\u2019s answer brief resolved our question as to whether the facts showed that the specific vehicular homicide was applicable. The answer brief states:\nAlthough Count III of the Petition in Children\u2019s Court charges Involuntary Manslaughter in statutory language . it is clear, at least to defendant, that the manslaughter charged was the homocide [sic] of Billy D. Lucero by Joseph D. Montoya while operating a vehicle in a reckless manner and while under the influence of intoxicating liquor.'\nWith this concession that the vehicular homicide statute was applicable, the involuntary manslaughter allegation was an allegation under the inapplicable statute. A court lacks jurisdiction, because of lack of authority, to proceed under an inapplicable statute. State v. Madrid, 82 N.M. 525, 484 P.2d 367 (Ct.App.1971); State v. McNeece, 82 N.M. 345, 481 P.2d 707 (Ct.App.1971). Since jurisdiction was lacking over the involuntary manslaughter alleged in the Children\u2019s Court proceeding, that allegation provided no basis for a double jeopardy claim. State v. Mabrey, supra.\nJurisdiction of the Trial Court\nSection 32-1-27(1), N.M.S.A.1978 states:\nI. Criminal proceedings, actions and other proceedings based upon an offense alleged in a petition under the Children\u2019s Code, or an offense based upon the conduct alleged in the petition, are barred if the court has begun taking evidence in the proceedings or has accepted a child\u2019s admission of the allegations of a petition in the proceeding, except that nothing in this subsection bars criminal proceedings in a tribunal upon proper transfer to that tribunal under the Children\u2019s Code.\nDefendant points out that the indictment charges were based on conduct alleged in the Children\u2019s Court petition, and the Children\u2019s Court had taken evidence in connection with that conduct prior to the time the mistrial was granted. Since no transfer order was entered, see \u00a7 32-1-29, N.M.S.A. 1978, he claims that \u00a7 32-1-27(1), supra, bars proceedings under the indictment. He claims that the statute is mandatory.\nSection 32-1-27(1), supra, is not to be construed to bar criminal proceedings because of evidence taken in Children\u2019s Court proceedings, when the Children\u2019s Court lacked jurisdiction over the allegations being heard in the Children\u2019s Court. See State v. Doe, 90 N.M. 249, 561 P.2d 948 (Ct.App.1977).\nThe order dismissing the indictment is reversed.\nIT IS SO ORDERED.\nHERNANDEZ and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Toney Anaya, Atty. Gen., Janice M. Ahern, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.", "James M. Scarborough, Espa\u00f1ola, for defendant-appellee." ], "corrections": "", "head_matter": "600 P.2d 292\nSTATE of New Mexico, Plaintiff-Appellant, v. Joseph D. MONTOYA, Defendant-Appellee.\nNo. 3681.\nCourt of Appeals of New Mexico.\nJan. 2, 1979.\nToney Anaya, Atty. Gen., Janice M. Ahern, Asst. Atty. Gen., Santa Fe, for plaintiff-appellant.\nJames M. Scarborough, Espa\u00f1ola, for defendant-appellee." }, "file_name": "0346-01", "first_page_order": 392, "last_page_order": 394 }