{ "id": 1577410, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Eusebio GONZALES, Defendant-Appellant", "name_abbreviation": "State v. Gonzales", "decision_date": "1981-07-30", "docket_number": "No. 5042", "first_page": "556", "last_page": "558", "citations": [ { "type": "official", "cite": "96 N.M. 556" }, { "type": "parallel", "cite": "632 P.2d 1194" } ], "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": "95 N.M. 233", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575616 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0233-01" ] }, { "cite": "94 N.M. 11", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573156 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/94/0011-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "92 N.M. 336", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557046 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0336-01" ] } ], "analysis": { "cardinality": 395, "char_count": 7090, "ocr_confidence": 0.803, "pagerank": { "raw": 3.019856438764466e-07, "percentile": 0.8538134848788481 }, "sha256": "4a62e5e6960786331b76880dec08a5db4b2cf43311a93fe0f8efb990cfb1e769", "simhash": "1:a222323f9de79637", "word_count": 1130 }, "last_updated": "2023-07-14T16:25:27.930698+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and WALTERS, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Eusebio GONZALES, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nGonzales and Ortega were convicted, in a consolidated trial, of larceny of a nail gun over $100.00 in value. Section 30-16-1, N.M.S.A.1978 (1980 Cum.Supp.). Each defendant has appealed. This appeal involves only Gonzales. Issues listed in the docketing statement, but not briefed, were abandoned. State v. Gallegos, 92 N.M. 336, 587 P.2d 1347 (Ct.App.1978). Gonzales has briefed two issues which involve: (1) suppression of his statements, and (2) the length of his probation.\nSuppression of Statements\nGonzales sought suppression of all statements he made to the police. In the trial court, Gonzales sought suppression on two grounds: (a) that his statements were the result of promises, and (b) his statements were made in the absence of warnings as to his constitutional rights (Miranda warnings \u2014 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). The trial court found that no promises had been made; there is no appellate issue concerning promises. On appeal, Gonzales contends his statements should have been suppressed because he was not given the Miranda warnings.\nState v. Harge, 94 N.M. 11, 606 P.2d 1105 (Ct.App.1979), states: \u201cMiranda warnings are required only where there is such a restriction on a person\u2019s freedom as to render him \u2018in custody\u2019 and subject to a coercive environment.\u201d\nState v. Montano, 95 N.M. 233, 620 P.2d 887 (Ct.App.1980), states: \u201cGeneral on-the-scene questioning or other general questioning of citizens in the fact-finding process is not considered custodial, however, and a person in these circumstances need not be informed of his rights before being questioned.\u201d\nState v. Harge states \u201cit is for the trial court to weigh the evidence and so long as there is substantial evidence to support its ruling, the appellate court will not find error as a matter of law.\u201d\nThere is substantial evidence which supports the trial court\u2019s refusal to suppress the statements of Gonzales.\nThe theft occurred during the noon hour at a construction site. People at the scene during the noon hour were roofers. When the construction superintendent discovered the nail gun was missing he informed the roofers that \u201cif I couldn\u2019t find the gun, I\u2019d have to call the Sheriff.\u201d When the superintendent was going to neighbors to use the telephone to report the disappearance, two men left the scene in a blue Ford.\nDeputy Villareal was sent to investigate. While discussing the matter with the superintendent, Gonzales returned, alone, in the blue Ford. The deputy asked Gonzales what happened. Gonzales stated he had taken \u201cRudy\u201d to town (not the other defendant \u2014 Ortega) and he thought Rudy had taken the gun. Gonzales went with the deputy to locate Rudy; Gonzales told the deputy where to go. They went to two locations, without success. Arriving at a third location, Gonzales went into the house and returned with the gun. Ortega was found hiding in the house and was arrested. Gonzales made an inculpatory statement to Ortega; this statement is not involved because it was not made to the police. The deputy returned both Gonzales and Ortega to the construction site where the superintendent identified them as the men who had left in the blue Ford. The deputy asked Gonzales if he had given Ortega a ride to town and Gonzales said \u201cno\u201d. The deputy then arrested Gonzales.\nGonzales\u2019 \u201cstatements\u201d are included in the preceding paragraph. The trial court could properly rule that none of the statements were made as a result of custodial questioning.\nLength of Probation\nGonzales was sentenced to a term of eighteen months in the penitentiary, to be followed by one year parole. All but ninety days of this sentence was suspended. Once the ninety days were served, defendant was placed on probation for two years.\nSection 31-20-7(B), N.M.S.A.1978 states: \u201cWhen the court has suspended the execution of a sentence, in whole or in part, the total period of suspension shall not exceed the maximum length of the term of imprisonment which could have been imposed by sentence against the defendant for the crime of which he was convicted.\u201d\nThis total period of suspension limits the length of probation. Under \u00a7 31-29-5, N.M.S.A.1978, the length of probation is for \u201call or some portion of the period of deferment or suspension\u201d, subject to a maximum length of five years.\nThe dispute thus involves the meaning of the maximum term which could have been imposed. Defendant looks to the sentence that was imposed \u2014 eighteen months \u2014 and asserts that is the maximum probation. The issue, however, involves the imprisonment which \u201ccould have been imposed\u201d.\nSection 31-18-15, N.M.S.A.1978 (1980 Cum.Supp.), in subparagraph A(4), provides a basic sentence of eighteen months imprisonment. Subparagraph C provides for a period of parole in accordance with \u00a7 31-21-10, N.M.S.A.1978 (1980 Cum.Supp.). The period of parole for defendant, see \u00a7 31-21-10(C), was one year. This parole period is a part of defendant\u2019s sentence, but is to be served \u201cafter the completion of any actual time of imprisonment.\u201d Section 31\u2014 18-15(C). A defendant may be imprisoned during his parole period, either for refusing to accept the conditions of parole, \u00a7 31-21-10(D), or for violation of conditions of parole, \u00a7 31-21-14(C), N.M.S.A.1978. Imprisonment for noncompliance with parole matters, however, is not a term of imprisonment which could have been imposed by sentence; such imprisonment results only after sentence has been imposed. The parole term is not to be utilized in determining the maximum length of probation under a suspended sentence.\nSection 31-18-15(B) provides that the term of eighteen months imprisonment was \u201c[t]he appropriate basic sentence of imprisonment . . . unless the court alters such sentence pursuant to the provisions of Section 31-18-15.1, 31-18-16 or 31-18-17 NMSA 1978.\u201d Each of these sections authorize additional imprisonment \u2014 \u00a7 31-18-15.1 for aggravating circumstances; \u00a7 31-18-16 for use of a firearm; \u00a7 31-18-17 for a prior felony conviction. The additional imprisonment authorized by these sections could not have been imposed absent facts making these sections applicable. In this case, there is no suggestion that there are facts making any of these sections applicable. The result is that the maximum term of imprisonment which could have been imposed was eighteen months. Eighteen months being the maximum imprisonment which could have been imposed, eighteen months was the maximum length of his probation.\nThe conviction and sentence are affirmed. The cause is remanded to correct the length of defendant\u2019s probation by reducing the length of the probation to eighteen months.\nIT IS SO ORDERED.\nHENDLEY and WALTERS, JJ., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "Michael Gernsheimer, Granat, Gernsheimer & Hartmann, P.A., Santa Fe, for defendant-appellant.", "Jeff Bingaman, Atty. Gen., Heidi Topp Brooks, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "632 P.2d 1194\nSTATE of New Mexico, Plaintiff-Appellee, v. Eusebio GONZALES, Defendant-Appellant.\nNo. 5042.\nCourt of Appeals of New Mexico.\nJuly 30, 1981.\nRehearing Denied Aug. 4, 1981.\nMichael Gernsheimer, Granat, Gernsheimer & Hartmann, P.A., Santa Fe, for defendant-appellant.\nJeff Bingaman, Atty. Gen., Heidi Topp Brooks, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0556-01", "first_page_order": 584, "last_page_order": 586 }