State v. ApacheState v. Apache
- Reporters:
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- Before:
- Minzner
OPINION
Dеfendant appeals from an order revoking the suspension of his sentence, contending that the trial court lacked jurisdiction to revoke his probation. Rеlying on
Facts
Defendant pled guilty to commercial burglary and larceny. On January 28, 1983, he was sentenced to twenty-four months imprisonment. The sentence was suspended, and probation was imposed for the twenty-four month period.
The record indicates that defendant violated the conditions of his probation on two occasions. After the first revocation hearing, the trial court continued defendant’s probation on the condition that he attend a rеhabilitation program in Denver, Colorado
Defendant’s probation officer, George Drake, testified that he began efforts to locate defendant after he failed to pick up a travel permit necessary for him to go to the rehabilitation center in Denver. Defendant arrived at Drake’s office after hours on January 31, 1984, and was told to come back the next day, but failed to do so. Drake called defendant’s sister, who lives in Albuquerque and with whom defendant had said he was staying, when he visited Drake’s office. Defendant’s sister told Drake that defendant was not at her home and that she did not know where he was. Drake next went to an Albuquerque motel, which he believed to be defendant’s last known residence, but he was told that defendant was no longеr there.
The trial court received a probation violation report dated February 10, 1984. A bench warrant issued February 24, 1984.
A warrant officer for the Albuquerque Policе Department testified that he followed standard procedures after he received the warrant. The police department’s most recent address for defendant was in Socorro, and a bulletin was sent there. In addition, on February 29, 1984, he listed the warrant for defendant’s arrest with the National Crime Information Center. Six months latеr, having received no response from Socorro authorities, another bulletin was sent there.
Defendant was arrested by the Albuquerque Police on August 21,1985. At the second probation revocation hearing, defendant admitted violating the terms of his probation.
The trial court found that defendant’s term of probation was effeсtively tolled from February 10, 1984 until August 21, 1985, at which time more than eleven months remained of the term. Defendant was sentenced to imprisonment and credited for presentence confinement and time served on probation.
Alleged Jurisdictional Error.
As defendant acknowledges, however, Section 31-21-15(C) effectively permits the probationary term to be tolled whenever a probationer has absconded from supervision and “it is found that a warrant for the return of a probationer cannot be served ****’’ State v. Kenneman,
Defendant contends the probationary term may be tolled only if prior to the expiration of the probationаry term there has been a judicial determination that the bench warrant cannot be served and that the probationer is therefore a fugitive. See Sectiоn 31-21-15(C), which states: “If it is found that a warrant for the return of a probationer cannot be served, the probationer is a fugitive * * * * ” (Emphasis added.)
In construing statutes, courts must look to the language used in the act
If it is found that a warrant for the return of a probationer cannot be served, the probationer is a fugitive from justice. After hearing upon return, if it appears that he has violated the provisions of his release, the court shall determine whether the time from the date of violation to the date of his arrest, or any part of it, shall be counted as time served on probation. (Emphasis added.)
It would be contrary to the express language of Section 31-21-15(C), and a violation of constitutional due process, for a trial court to revoke a probationer’s probation, in absentia, when the probationer has absconded from the jurisdiction. See State v. Vigil,
Defendant’s argument relies on a technical construction of the statutory language. Such a construction would be contrary to the legislature’s intent because it would defeat the object оf the legislation. See State v. Nance,
Sufficiency of the Evidence
There was no evidence that Socorro authorities actually received the teletype messages or that they in fact attempted to serve the warrant. Defendant contends that the lack of such evidenсe amounts to a failure of proof because Section 31-21-15(C) requires a finding that the arrest warrant “cannot be served.”
Such evidence was not necessary. Cf. State v. Garcia,
In determining suffiсiency of the evidence, all disputed facts are resolved in favor of the decision below, all reasonable inferences are indulged in support of that decision, and all inferences to the contrary are disregarded. State v. Martinez,
Here, the trial court found that the arrest warrant was issued and placed in the normal channels for service. Defendant presented no evidence that he had in fact resided at the Socorro address. Conversely, however, he did admit violating the terms and conditions of his probation by (1) failing to report to a residential treatment program, (2) failing to submit monthly reports, (3) changing addresses without written рermission, and (4) absconding from supervision. The evidence and the inferences therefrom adequately support the trial court’s determination that defendant wаs a fugitive within the meaning of Section 31-21-15(C).
Conclusion
No other argument having been raised on appeal, we hold that there was sufficient evidence to support the trial court’s ruling that defendant was not entitled to credit for all of the time he was found to have been a fugitive. The order revoking defendant’s suspended sentence is affirmed.
IT IS SO ORDERED.