State v. Edmondson

аttorney general crimes.1 time of the suggests, as the Corrections

consequently has, that these mat- allegedly

Department by the trial court resolved should be ters records, from local probably it is

because records, jail or sheriff’s county e.g., the petitioner’s parole revocation

that the can be cal- period

presentence confinement course, Petitioner, should

culated. presentence double credit. receive J., part and dis- Donnelly, concurred in parole is period ends when confinement opinion. part and filed an sented revoked, then is confined petitioner prior conviction. pursuant to Section hold that under

We for the trial court to deter- it is sentencing, rele- at the time of

mine other evidence to be documents or

vant record, specific part of the

made a to be credited confinement

presentence finally imposed for

against any sentence an accused has been

offenses on which case to the district remand this

held. We with this proceed in accordance

court to

opinion.

IT IS SO ORDERED. BACA, J.,

SOSA, C.J., concur. of New

STATE

Plaintiff-Appellee, EDMONDSON, Defendant-

Robert

Appellant.

No. 12103. Appeals of New Mexico.

Court

May 1991. July 1991. Granted

Certiorari quashed Sept.

Certiorari herein, resulting fact, attorney general crimes and the point asserted the various 1. In parole time consecutive to the did sentences were in the the sentences 8, 1984, sentenced. peti- as of the date he was August that remained until when not commence 31-18-21(B) (Repl.Pamp. paroled Peti- See NMSA from a sentence. tioner was 1990). parole at the time he committed tioner was Fe, Dunning, Samantha for Santa defen- dant-appellant. Udall, Gen., Gandert, Atty.

Tom Patricia Gen., Fe, Atty. plaintiff- Asst. Santa for appellee.

OPINION HARTZ, Judge. opinion appeal

Our in this criminal has parts. two Because the issues treated part precedential II are of no value and are parties only, part matters of concern to the published. II will not be I.

Defendant was convicted on two counts of issuance worthless con checks. He improperly tends that the trial court en hanced his as a sentences habitual offend er, see (Repl. § Pamp.1990), en because the basis hancement was Texas convic tion that had set aside a Texas been argues He court. New Mexico not permit ‍‌​​​‌​‌‌‌‌‌‌‌​‌‌‌​‌‌​‌​‌​‌​‌​‌​‌​‌‌‌‌​​‌​​​​​​​​‍habitual-offender statute does any of such a and that in use IV, prohibited by case such use is Article Constitution, Section of the United States Clause, the Full Faith and Credit permit Texas law does such convictions sen to be considered tencing. We affirm. question before us whether defen- by a Texas court consti-

dant’s conviction “prior felony tutes a conviction” for poses of the New Mexiсo habitual-offender felony “prior defines statute. That statute conviction” as: felony for a 1. [A] Mexico whether committed within New not; Code or or within Criminal per- any prior felony for which the than an offense son was convicted other by court-martial if: triable by (a) was rendered the conviction States, state, the United of another territory or the of the United States Rico; of Puerto commonwealth (b) punishable, at the the offense was conviction, or maxi- by death time of imprisonment mum more may appeal term of than defendant the conviction at the year; placed probation, time he is Tex.Code 8(b), Crim.Proc.Ann. art. 42.12 (c) errors the offense would have classi- original may at the trial not later be raised fied as a this state at the time appeal on probation. from revocation of of conviction. State, See Whetstone v. 786 S.W.2d 361 31-18-17(A) (Repl.Pamp. § (en banc); (Tex.Crim.App.1990) Carnes v. 1990). dispute There is no that a valid State, (Tex.Crim.App.1972). 478 S.W.2d 940 judgment felony punish- of conviction for a County Dallas Bail Bond Similarly, by imprisonment аble of more than one Stein, Board v. (Tex.Ct. 771 S.W.2d 577 year against by was entered defendant App.1989), the court held that a necessary Texas court. That is all that is purposes conviction is final for eligibility of under our statute. to be licensed as a bail bondsman. The complication in this case is that de court wrote: placed probation fendant on was after his By successfully fulfilling the terms of Upon completion conviction. successful of probation, probationer his is released probation, against his the indiсtment defen from such expiration disabilities at the dant set aside Texas court.1 The period probation. This release conviction could not be considered under does not affect finality of the convic- the Texas habitual-offender statute. See tion; rather, merely removes those le- Murchison, parte Ex (Tex. 560 S.W.2d 654 gal disadvantages associated with such (en banc). Crim.App.1978) It does not fol Id. at 582 (citation conviction. low, however, and em- that a New Mexico court deleted). phasis cannot use thе conviction for our habitual-offender statute. The conviction can even be used for sen- tencing general sentencing Burk, under the stat- State v. upon

Defendant relies provides utes. Texas law despite N.M. dis- (Ct.App.1984). missal of the distinguishable. That the defendant’s case is There had “con- plea viction or guilty never shall been a conviction of Burk. Under be made law, again Texas known to the court” if he Tex.Code Crim.Proc.Ann. art. is convicted 42.12, 3d(a) (Vernon 1979), of a crime. he had been Tex.Code Crim.Proc.Ann. art. 42.12(7). placеd probation See Tex.Code Crim.Proc.Ann. art. any adjudica- on without State, 37.07(3); guilt being noted, tion of Glenn v. entered. We S.W.2d adjudi- “Texas courts hold that (Tex.Crim.App.1969); because no McLerran v. guilt entered, cation of is the trial court’s (Tex.Crim.App.1971). 466 S.W.2d 287 deferring proceedings essence, action in is not In when the Texas courts have deemed a ‘conviction.’ 101 N.M. at spoken judgment of conviction fol- contrast, 680 P.2d at 981. In defendant by probation lowed being as not a “final placed probation judg- conviction,” here was after а they saying only have been ment of conviction. See Tex.Code Crim. conviction cannot be used for 42.12, Proc.Ann. art. 3a. poses of the Texas §§ habitual-offender stat- ute. given reason the Texas courts for forbidding event, the use of a any conviction such as In requirement there is no defendant’s for habitual-offender sentenc New Mexico’s habitual-offender law that a ing is that such a conviction does not be conviction be “final.” Burk made no probation come “final” unless and until the reference to cоnvictions. The court final parte See Ex Murchison. held, revoked. simply “There was no conviction.” “final,” however, That use of the word 101 N.M. 680 P.2d at 982. Nor is idiosyncratic. respects support some the convic there elsewhere in our law for a tion is example, treated as final. For requirement finality. The New Mexico judgment 1. The court’s order also "set aside” the See Tex.Code Crim.Proc.Ann. art. 42.12 7§ conviction, although (Vernon 1979) governing (may permit set aside verdict or provide specific plea). statute does not for thаt relief. withdrawal of regarding guilt.2 any question no defendant’s contains lan- statute habitual-offender Nothing in habitual-offender must be statute stating that a conviction guage (1) permit ‍‌​​​‌​‌‌‌‌‌‌‌​‌‌‌​‌‌​‌​‌​‌​‌​‌​‌​‌‌‌‌​​‌​​​​​​​​‍for habit- a distinction between it can considered would final before reported pardon a deferred sen- sentencing. No or dismissal after ual-offender On the interpreted the statute. the action taken the Texas has so tence N.M. contrary, Tipton, State court. permitted use of non- P.2d 216 possibility As for the that New Mex held that a final The court conviction. incorporates the of the state of ico law plea by itself constituted a guilty conviction, Mexi the habitual- pursuant used that could be sug co statute does not though offender even considering a gest when plea. on Accord not been state, defer another New Mexico will State, 664, N.M. 568 P.2d 190 90

Padilla v. that the to the other state’s determination guilty a (1977). law Under New Mexico not used for habitual- conviction should appeal plea is “final.” An can be taken not purposes. Our statute does nоt offender entry judgment. only after See the offense require that the state where 1978, (Orig.Pamp.). a sentenc occurred have simple of matter is that fact (in ing scheme the absence of which no under the laws defendant was convicted for conviction could be used habitual-of ignore If we to of Texas. are the State state), in sentencing or that the fender for of the New that conviction particular felony is that can involved it must Mexico habitual-offender sentencing in be used for habitual-offender (1) eithеr the New Mexico stat be because Calvin, v. 244 the other state. See State permit the use of a conviction ute does not 402, (1966) (Oregon 821 can Or. 418 P.2d (2) in in circumstances such as this forgery conviction even use California if would otherwise use even New Mexico permit forgery though California did not to conviction, incorporates New Mexico predicate as offense in a habit be used a where the conviction the law of the state charge). su Shankle our ual-criminal only and will consider those was entеred strongly analysis preme court endorsed the ha be used under the convictions can Supreme and rationale of California state. statute bitual-offender Biggs, in People decision v. 9 Court’s 508, (1937), adopted P.2d 214 foreclosed Cal.2d 71 and possibility The first precedent. supreme opinion’s observation that convictions Our by New Mexico general provi within the pardon pre not are to be included held that a does court has a unless habitual-offender statute of a habit sions vent use expressly statute. they are excluded New Mexico. ual-offender 93-94, 88, 324 It is of 324 P.2d 64 N.M. at P.2d at 1020. Woodruff, 64 N.M. v. Shankle particular permitted the (1968). directly Biggs interest that point, Pa 1017 More even supreme permitted use of a use of Texas dilla (a) par though though the conviction conviction even prior New Mexico time, (b) law under Texas at the after suc doned was later dismissed 194, 20 v. 113 Tex.Cr.R. completion of a deferred sentence. Scrivnor cessful pardoned convic distinguish (App.1928), 416 principled way to the S.W.2d We see no used for habitual-offender from what tiоn could not be circumstances these cases 514, 71 sentencing. Biggs, 9 Cal.2d at comple happens upon in Texas successful See York, 217; 233 in P.2d at Carlesi v. probation, as above tion described cf. 576, 51, L.Ed. 843 34 58 County Board vs. U.S. S.Ct. Dallas Bail Bond (for purposes of habitual-offender sentenc taken The Texas court’s action was Stein. par reasons, ing, may use federal conviction state for rehabilitative not because legitimately not the con- could use set New Mexico If a conviction has been aside beсause sentencing. example, See validity for habitual-offender be- viction concern about its —for 212, (1967). Moser, evidentiary rulings N.M. improper at 78 trial— State cause of 658 People see reading of by president). But narrow statute

doned 137, 381, binding P.2d 37 Cal. on all Terry, 61 390 would become other Cal.2d (en banc) (Oklahoma giv courts, Instead, pardon including Rptr. 605 this one. we it would lenity effect in California that always en same reserved for those have cert, Oklahoma), 379 U.S. have in which a reasonable situations doubt 13 L.Ed.2d 85 S.Ct. 68 persists scope intended about statute’s silentio, Dutton, People v. sub rejecting even resort “the after dismissed, appeal 71 P.2d Cal.2d structure, legislative history, and moti- 365, 82 L.Ed. 508 302 U.S. vating policies” the statute. Bifulco (1937). is that federal persuasive Also States, supra, United at U.S.] [447 permitted expunged repeatedly courts United 2252]; see also S.Ct. [100 predicate as convictions to serve Bass, States v. S.Ct. [92 of a firearm possession offenses (1971) (court 515, 522, 30 L.Ed.2d 488] See, e.g., United States convicted felon. if, rely lenity only should "[a]fter (5th Cir.1982). Gray, F.2d thing ‘seizing] every from which aid can derived,’ аmbigu- compel us to “left with an lenity The rule of does statute,” quoting United States v. law. United States ous defer Fisher, recently rule Supreme Court wrote of the L.Ed. Cranch 386 [2 304] (1805) (Marshall, C.J.)). follows: as — “emphasized that repeatedly have We States, U.S.-, Moskal United 111 lenity of the rule of ‘is the ‘touchstone’ 461, 465, (1990) (em- 112 449 S.Ct. L.Ed.2d v. Unit- statutory ambiguity.’ Moskal). Bifulco phasis States, 381, 387 ed 447 U.S. S.Ct. [100 is lenity The rule of as so defined of 2252, 2247, quot- L.Ed.2d 65 205] no assistance to defendant here. chief States, 55, ing Lewis v. United 445 U.S. purposes of habitual-offender statutes are 921, 915, 63 L.Ed.2d 65 S.Ct. 198] [100 (1) purpose the deterrent/rehabilitative of (1980). level Stated at this of abstrac- discouraging previously those who have tion, course, rule of the engaging serious committed crimes “provides atmospher more than little (2) within Mexico and similar conduct New ics, open since it leaves the crucial punitive/protective purpose of incarcer invariably question present— —almost period longer a time those ating for of who how ambiguousness much consti of repeated to have shown a inclination com * * * ambiguity.” United tutes mit offenses. In сonsonance with serious Hansen, U.S.App.D.C. 249 States has purposes supreme those not 30, 940, (1985) (Scalia, 22, 772 F.2d 948 language exceptions read into the of broad J.) added), cert. (emphasis 475 already As the habitual-offender statute. 1045 S.Ct. 89 L.Ed.2d U.S. [106 noted, adopted that Shankle the view con (1986). 571] coming provi general within the victions meaning language in- Because the of is the New statute are includ sions of Mexico contextual, herently we have declined to expressly ed unless excluded. “ambiguous" deem statute read compelling We see no reason to merely poses lenity of because it was exception into our statute for Texas convic- possible to a construction more articulate Indeed, it tions such as defendant’s. urged narrow than that the Govern- policy advanced unclear what would be McElroy e.g., v. United See, ment. doing so. Once former Texas offender States, 642, 657-658 455 S.Ct. U.S. [102 a new offense in New he commits 1332, 1341, (1982). Nor 71 L.Ed.2d 522] of rehabilita- has demonstrated failure judicial division have we deemed a encourage it tion. does rеhabilitation trig- How authority automatically to sufficient if that he commits another lenity. See, tell someone e.g., United States ger offense, as harsh as penalty will not be Rodgers, 466 U.S. 484 S.Ct. [104 seem (1984). might been? It would 1942,1948-49, If 80 L.Ed.2d 492] encouraged sufficient, be more unduly rehabilitation would were court’s

659 imate, not has but it should override Mexi- penalty for one who increasing the policy. public co ex- prior pardoned conviction had a ob- certainly And one who has punged. short, nothing in the law sentence under Texas tained deferred statute, the New Mexico habitual-offender pun- every deserving bit of increased as implicit in the not policy no even not as one whose sentence was ishment policy of State of Tex any substantial Supreme States deferred. United as, suggests that defendant’s conviction concluding suggested as in the much Court not used under New Mexico’s should Carlesi: statute. In that circum stance, lenity application. ‍‌​​​‌​‌‌‌‌‌‌‌​‌‌‌​‌‌​‌​‌​‌​‌​‌​‌​‌‌‌‌​​‌​​​​​​​​‍the rule of has no Indeed, as must not be understood we beyond intimating that it would contrary is not Finally, result com- provide legislаtive competency to pelled by the Full Faith and Credit Clause. fact of an offense commission It is not at all clear that the Full prior offense, pardon of a should after applies Clause to criminal Faith Credit adding as an increased ele- be considered George, matters. See Nelson U.S. aggravation that which would ment L.Ed.2d result alone from the commis- otherwise (state required penal judg to enforce sion of the offense. state); Huntington sister ment of v. Att rill, 36 L.Ed. U.S. S.Ct. 34 S.Ct. at 578. (1892) (suggesting cannot about use Texas itself is ambivalent state, penal judgment another enforce probated including monetary penalty). one for committed later. for offenses Barber, 65 But see Farmland Dairies v. Although an unrevoked 51, 1314, 489 N.Y.2d 478 N.E.2d N.Y.S.2d under that state’s habitual- cannot be used (1985) (full requires 713 faith and credit statute, such are to be offender convictions by Jersey York to abide New criminal judge jury imposing or by considered judgment stating that it not used could be ranges within the broad allowed assuming it proceeding). Even that civil State; by Texas v. McLer- law. See Glenn does, it if rarely, we would beliеve Estelle, State; 505 116 Mays v. v. F.2d ran ever, governed by compel state to be (5th Cir.1974). first-degree felony a For regarding state the law a second range years is five to punishment punishment can be for a ninety-nine Code Ann. years, Tex.Penal first within the state’s crime committed 1974); (Vernon second-degree 12.32 for § Supreme As the United States boundaries. twenty range years to felony the two context, different said a somewhat Court 12.33; third-degree for a years, id. and not faith and credit does automati “[F]ull range years years. to ten felony the is two compel to subordinate cally a forum state Theoretically, a 12.34. Id. § policy conflicting statutory to a its own re- charge that had been dismissed could rather, state; public is for act of another being five in a sentence increased from sult to each case between this Court choose substantially ninety-nine years, a years to competing public policies involved.” than would occur under greater differential 609, 611, Fetter, v. U.S. Hughes habitual-offender statute. New Mexico’s (1951) (Wis 980, 982, 95 L.Ed. 1212 S.Ct. cause of ac recоgnize must Illinois consin lenity for purpose, sole other than death). wrongful for tion lenity, we can see could the sake refusing express public policy use the its to A cannot served state sentencing penal through its code. strongly for habitual-offender than more as criminal plea bargaining. An conduct encouragement of a state defines When offender, likely plead guilty punishment for may more sets the and accused possible conveying in clearest if the conviction could not be it is an offense Full faith public policy. sentencing in its terms view for habitual-offender used require not ordinarily should legit- credit purpose may be future. This policy person to abandon such fundamental whose state conviction policy pardoned). of another But see Farmland Dair public in favor of the ies v. Barber. jurisdiction. compel example, perhaps the most

For Turning to habitual-offender stat jurisdiction ling judgment by another particular, puni utes the deterrent acquittal in a criminal would be a verdict of argue tive of those statutеs does not trial. Yet full faith and credit bar strongly upholding provi in favor of their person for prosecuting a state from viola against any challenge the Full sions under acquittal despite tion of its own statute Thus, it is not Faith and Credit Clause. jurisdiction another on a of the surprising de jurisdictions that other Turley Wyrick, v. identical conduct. See prevent termined that the clause does not (8th Cir.1977)(state and feder 554 F.2d 840 using predicate state from as a offense denied, robbery charges), al cert. its habitual-offender statute an offense (1978); 1033, 98 S.Ct. 54 L.Ed.2d 780 рardoned, another state that has been see Alabama, 474 U.S. Heath v. Maroney, v. 373 F.2d 908 United States cf. S.Ct. (under 88 L.Ed.2d 387 Cir.1967); (3d Plummer, Groseclose doctrine, dual-sovereignty two states can (9th Cir.), F.2d 311 cert. 308 U.S. punish defendant same offense without 84 L.Ed. 513 Clause). violating Jeopardy Double that could not be used for habitual-offender sentencing in the other state. See State Even when a state’s laws Calvin; People Dippolito, 88 A.D.2d involved, are not full faith and credit does (1982) (New 452 N.Y.S.2d 655 York expunge require recognize the state to sentencing could use for habitual-offendеr state in which ment of a conviction burglary a California conviction for the conviction was rendered. Ballard v. would be in New York was but Board Trustees Police Pension California). People misdemeanor in But cf. Fund, (Ind.Ct.App.1983), 452 N.E.2d 1023 Willis, A.D.2d 435 N.Y.S.2d 38 police pension fund discontinued board (1981)(without reference to Full Faith and pension pursuant per Ballard’s to a statute Clause, Credit ‍‌​​​‌​‌‌‌‌‌‌‌​‌‌‌​‌‌​‌​‌​‌​‌​‌​‌​‌‌‌‌​​‌​​​​​​​​‍New York court refuses to mitting pensioner such action if the use for habitual-offender a Tex constituting felony. convicted of a crime that, as offense wаs dis felony The committed in Arizona. missed, pur could not be used for such An Arizona court had entered an order Texas). poses policies in behind the setting aside conviction and re Ballard’s decision of Texas not to use a storing rights. his civil The Indiana court purposes, conviction for habitual-offender pension action of the fund affirmed the above, analyzed which have been are not so board, stating: public “It is the declared compelling that full faith and credit re police pensioners policy of Indiana that quires prevail the Texas rule over felony may who are convicted of a Mexico law. New terminated____ pension their benefits reasons, For the above we affirm the Full Faith and Credit clause does not re enhancements of defen- quire apply a state to another state’s law in dant’s sentences. legitimate public poli violation of its own 1026; Thomas, cy.” Id. at see White IT ORDERED. IS SO (5th Cir.1981) (expungement F.2d prohibit BIVINS, J., of California court record did not concurs. firing deputy failing

Texas sheriff from DONNELLY, J., dissents. detention in his em to disclose California DONNELLY, Judge (concurring part; in ployment application), cert. dissenting part). 72 L.Ed.2d (7th except (1982); majority’s opinion, Wolfe, 503 F.2d 313 I concur the Thrall v. Cir.1974) (full involving propriety the of pro and credit did not as to the issue faith enhancing under the denying license to defendant’s sentence hibit IRS from firearm judgment ig- the Texas Mexico habitual criminal statute odds with and New proceed- upon prior Texas criminal the fact that the order of the Texas based nores ing just discharged was ordered dismissed and the which court had not dеfendant set aside Texas court. probation expressly the but aside de- from set Texas “conviction” and ordered fendant’s Defendant contends that the trial court him against that the criminal indictment enhanced Mexico sen improperly his New Thus, majority the dismissed. effect of the relying upon tence as an habitual offender opinion expand interpretation is to the prior invalid Texas conviction. See an our state’s habitual criminal statute to hold (Repl.Pamp.1990). that a defendant’s “conviction” in another proceeding, defen At the habitual binding to a state amounts “conviction” consisting of an dant introduced exhibit purposes of enhancement of his sentence discharging a Texas him order from court foreign even where New the “con- probation setting and Texas from aside the upon by viction relied this state has been upon by conviction which was relied to be set aside and is no ordered Mexico authorities enhance his sentence view, longer my final. use of a vacated present in the case. The exhibit shows Texas “conviction” to defendant’s enhance the Texas found that because conviction is New Mexico inconsistent with “satisfactorily completed defendant had Burk, 101 N.M. P.2d 980 State years probationary one-third or two of his * * * (Ct.App.1984), incongruous leads and to an period, complied and with all the application of New and at- Mexico law probation”: terms and conditions of said tempts life to breathe into a Texas convic- Judgment the Conviction [T]hat tion Texas courts which have directed be entered against the heretofore dant defen set aside. be, in this case the same is aside, hereby set the indictment dis Padilla v. 90 N.M. 568 P.2d * * * missed, and the defendant is here upon by relied majority, penalties from all by released and disabil distinguishable from case. resulting Judgment ities There, defendant was convicted of a cause, in this and the arrest Conviction proceeding New Mexico criminal entry hereby in this offense [shall] imposed. Fol- and a deferred was [Emphasis expunged. added.] lowing completion probation the case dismissed. The court held As evidenced term “conviction” as used in the deferred above, quoted Texas court ex- order guilt finding statute was a judgment of “con- pressly directed imposition did not include the Thus, the New be set aside. when viction” finding sentence. In the instant sought subsequently en- Mexico court guilt was ordered set the Texas aside the ha- hance defendant’s sentence under court. Texas “convic- bitual criminal upon by prosecution here

tion” relied Texas, prior probated In en- vacated. had been by pursuant tered a Texas court to an pri- guilt is en- majority opinion adjudication not available to emphasizes subsequent for a offense relating punishment of this to our hance or decisions state probation the defendant’s has been criminal statute draw a distinction unless habitual State, Dominque in judgment final revoked. S.W.2d between a and sentence (Tex.Ct.App.1990)(prior probated sen- adjudi- criminal case and “conviction” final reciting entered Texas court is not a cating guilt, that since defendant tence thus is to en- adjudged guilty of a conviction and not available initially to be nothing punishment subsequent for a offense “suggests in Texas that de- hance revoked); Rodg- has been probation un- unless fendant’s conviction should not be used (Tex.Ct.App. 744 S.W.2d 281 Mexico’s offend- ers v. der New habitual-criminal 1987) (burden prima is on state to make a sen- er statute” to enhance defendant’s any showing that relied analysis I facie tence in this state. think this defendant’s convictions I would affirm be- punishment upon for enhancement the case for resentenc- remand but would of the commission prior to came final ing. offense). recognized that previously has This court 31-18-17(A)(2)(a) requires that a

Section of that by a court rendered

conviction be Burk, a Texas Burk.

state. State follow- probation order of issued an plea. This court guilty

ing entry the effect to determine to Texas law looked 818 P.2d 863 proceeding for of the LUCERO, Claimant-Appellee, Phillip M. offender statute habitual New Mexico’s court’s decision the trial and affirmed SYSTEM, FREIGHT YELLOW sentence. Id. defendant’s to enhance the INC., employer, self-insured no ad- noted The Burk court Respondent-Appellant. Tex- by the guilt was entered judication of deferring court, action the court’s as 12388. No. not a “conviction”

proceedings was Mexico. Appeals of New Court of criminal stat- habitual pose of this state’s Id., July P.2d at 982. N.M. at ute. crimi- that the Texas record reflects upon relied

nal enhance- as a for the

the instant case basis Mexico sentence

ment of defendant’s his Texas court and

was dismissed expunged. Ab- ordered

arrest record was legislature, showing that our state

sent a ha- provisions of this state’s

adopting the 31-18-17, statute, Section criminal

bitual prior conviction incurred that a

intended set subsequently ordered

a sister state

aside, serve as the basis may nevertheless upon de- ‍‌​​​‌​‌‌‌‌‌‌‌​‌‌‌​‌‌​‌​‌​‌​‌​‌​‌​‌‌‌‌​​‌​​​​​​​​‍enhancing a sentence apply the I would in New

fendant Keith, 102 lenity. See State

rule of (stat- (Ct.App.1985)

N.M. authorizing punishment severe a more

utes subsequent conviction of

upon strictly penal in nature and are

offense

construed; the construction doubts about resolved favor penal statutes are Thus, lenity). I rule of believe sentence in the of defendant’s

enhancement upon the Texas convic- case based subsequently set aside did

tion that judgment of convic- a final

not constitute of defen- purposes of enhancement

tion for provisions of under the Sec-

dant’s sentence scope and exceeds the

tion 31-18-17 sentencing act.

habitual

Case Details

Case Name: State v. Edmondson

Court Name: New Mexico Court of Appeals

Date Published: Sep 25, 1991

Citation: 818 P.2d 855

Docket Number: 12103

Court Abbreviation: N.M. Ct. App.