State v. Ordunez
2012 NMSC 024
N.M.2012Background
- Defendant Ordunez pleaded guilty in 2004 to a fourth-offense aggravated DWI and related offenses, receiving 2½ years with probation; probation term set to expire October 19, 2007.
- In 2007 he was arrested for another aggravated DWI before his probation ended, triggering a petition to revoke probation filed September 7, 2007.
- Probation revocation hearings were scheduled after the probation term was set to expire, causing a procedural clash over jurisdiction to revoke after expiry.
- The 2004 DWI statute allowed credit for time served on probation; the 2007 amendment to the DWI statute denied credit for time served on probation for probation violations.
- The Court of Appeals affirmed dismissal; the Supreme Court granted certiorari and reversed, holding the 2007 no-credit provision not retroactive to the 2004 offense and that full credit must be given.
- As a result, the district court erred in revoking probation after expiry and the 2004 statute controls the credit calculation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2007 no-credit amendment applies retroactively | State argues retroactive application is proper; credits may be denied under 2007 provision | Ordunez contends retroactive application would violate ex post facto | No retroactive application; ex post facto prohibits applying 2007 provision to 2004 offense. |
| Whether retroactive no-credit would violate ex post facto | State asserts no retroactivity concerns if not a punishment increase | Ordunez argues retroactive no-credit would increase punishment | Retroactive application would violate ex post facto clauses. |
| Whether district court had jurisdiction to revoke probation after term ended | State contends revocation could occur upon violation even after term | Ordunez argues jurisdiction ended when term expired | District court could not revoke after term expiration under full credit rule. |
| What credit for time served applies to the 2004 offense | Credit should be governed by 2007 amendment? | Credit under 2004 statute should apply | Full credit required under 2004 statute; 2007 amendment not retroactive. |
Key Cases Cited
- State v. Reinhart, 439 P.2d 554 (N.M. 1968) (interpretation of credit for time served on probation)
- State v. Travarez, 99 N.M. 309 (Ct. App. 1983) (lacks jurisdiction to revoke probation after expiration of term)
- Lara, 129 N.M. 391, 9 P.3d 74 (2000) (probation revocation jurisdiction after term depends on time credit)
- Swink v. Fingado, 115 N.M. 275, 850 P.2d 978 (N.M. 1993) (statutory retroactivity presumptions in New Mexico law)
- Vartelas v. Holder, 132 S. Ct. 1479 (S. Ct. 2012) (retroactivity principle under U.S. law)
- Landgraf v. USI Film Prods., 511 U.S. 244 (U.S. 1994) (presumption against retroactive application of statutes)
- Woo Dak San v. State, 36 N.M. 53, 7 P.2d 940 (N.M. 1931) (earlier ex post facto considerations in NM)