State v. MuzioState v. Muzio
- Reporters:
- ,
- Before:
- Donnelly
OPINION
DONNELLY, Chief Judge.
Dеfendant appeals his conviction on three counts of issuing worthless checks, contrary to
We affirm as to each of the issues, except as to the designation of the degree of the crime charged for the offenses of issuing worthless checks; as to the latter issue, we remand for correctiоn of the judgment and resentencing.
FACTS
Defendant operated a restaurant in Coronado Shopping Center in Albuquerque. In May 1985, defendant began experiencing financial problems stemming in part from a civil judgment obtained against him in excess of $53,000. In June 1985, defendant closed his business and moved his equipment to other locations. Defendant issued a numbеr of checks drawn on his business account in excess of the funds on deposit, including a check on June 4, 1985, to Sears in the amount of $177.82, for the purchase of tools (Count II); a check dated May 31, 1985, to the Price Club in the amount of $2,114.26, for TV sets, VCR’s, radios, gourmet food, alcohol and other items (Count V); and a check to the Price Club dated June 1, 1985, in the sum of $5,141.96, fоr other miscellaneous merchandise (Count VI).
The three checks listed above were dishonored and defendant failed to return the merchandise or to pay the victims the amounts due. Defendant then filed for bankruptcy. The district attorney sought and obtained a grand jury indictment charging defendant with six counts of issuing worthless checks. Following a bench trial, defendant was convicted on Counts II, V and VI. Defendant was acquitted on the remaining charges.
I. APPLICABILITY OF SUPREMACY CLAUSE
Defendant argues that the district attorney initiated the criminal proceeding for the purpose of collecting the debts incurred by defendant due to the issuance and dishonor of the checks, and that the debts represented by the dishonоred checks had been discharged in bankruptcy. Defendant asserts that the federal Bankruptcy Code,
Defendant also contends that the state criminal prosecution against him was improper under the Supremacy Clause of the federal constitution.
The issue of whether a criminal proceeding initiated against defendant under the state Worthless Check Act,
The purpose of the federal bankruptcy law is to “ ‘relieve the honest debtor from the weight of oppressive indebtedness and permit him to start afresh free from the obligations and responsibilities consequent upon business misfortunes.’ ” Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934) (citing Williams v. United States Fidelity & Guaranty Co., 236 U.S. 549, 554-55, 35 S.Ct. 289, 290, 59 L.Ed. 713 (1915)). The purpose of the Worthless Check Act is to remedy the evil of giving checks on a bank or depository without providing funds to pay or satisfy them.
A debtor’s filing of a petition for bankruptcy or obtaining of a discharge under the Bankruptcy Code does not prevent the institution and prosecution of criminal proceedings against a debtor for criminal acts.
Defendant’s assertion of fundamental error or bar of criminal prosecution under the Supremacy Clause does not apply to the case before us.
II. PRESUMPTION OF FRAUD
Defendant argues that the trial cоurt relied on the statutory presumption of intent to defraud in reaching its decision that he was guilty of three counts of issuing worthless checks. Under
The alleged misuse of the statutory presumption was not raised at trial and there is no evidence in the record to support defendant’s contention that the trial court applied the presumption. Defendant did not ask the trial court for a factual finding concerning the statutory presumption nor did defendant еnter a specific objection. New issues may not be raised on appeal, whether they are listed in the docketing statement or not. Melon v. State, 90 N.M. 787, 568 P.2d 1233 (1977). Defendant’s claim of fundamental or jurisdictional error is without merit. Moreover, at the trial on the merits, the court did not mention the statutory presumption of fraud in its findings of fact or conсlusions of law. The trial court correctly stated that defendant’s intent at the time of issuing the checks was determinative as opposed to his supposed failure to honor the checks. Consequently there is no factual basis that the trial court relied on the presumption in reaching its decision. Additionally, other substantial evidence еxists in the record upon which to infer defendant’s intent to defraud. Based on the record, therefore, we cannot say that the trial court abused its discretion by inferring defendant’s guilt from other evidence apart from the statutory presumption of intent to defraud.
III. RESTITUTION
Defendant next claims that the trial court inquired at the sentencing hearing whether it possessed the power to order restitution to the victims of the three counts for which defendant was convicted, because of a potential conflict with the federal Bankruptcy Code. After being informed by both defendant and the prosecutor that the court had the power to order restitution, the judge stated, “Well, I don’t think it makes a lot of difference right now in view of the fact that restitution is a condition of probation and that’s not what the court’s going to do.” This post-conviction statement of the court made before entry of a judgment and sentence is not binding; only a written order or judgment signed and filed by the court is legally effective to implement the court’s ruling. See Smith v. Lоve, 101 N.M. 355, 683 P.2d 37 (1984); State v. Crespin, 90 N.M. 434, 564 P.2d 998 (Ct.App.1977).
The filing by a defendant for bankruptcy or the obtaining of a discharge in bankruptcy does not void a restitution order imposed as a condition of probation under a state criminal judgment. See Kelly v. Robinson, — U.S. -, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986). Defendant concedes that the sentence was within the statutory limits and, therefore, was not an abuse of discretion. Defendаnt contends, however, that because the court did not fully consider restitution as an option, the court did not consider imposing a deferred or suspended sentence. We disagree. Although the trial court was invested with the authority to impose a suspended sentence and place the defendant upon probation with a prоvision for restitution, here the record indicates the trial court was fully informed as to its sentencing options. Defendant’s discharge in bankruptcy did not preclude his sentencing after conviction under state criminal statutes. See Robinson; People v. Mosesson, 78 Misc.2d 217, 356 N.Y.S.2d 483 (1974). Defendant’s contention is without merit.
IV. SENTENCING
The judgment and sentence entered by the trial court recited that the offense of issuing worthless checks was a “fourth degree felony offense.” The Worthless Check Act does not use the words “felony” or “misdemeanor.”
As worded, the Criminal Sentencing Act applies to both Criminal Code and other crimes.
Whenever a defendant is convicted of а crime under the New Mexico constitution, or a statute not contained in the Criminal Code, which specifies the penalty to be imposed on conviction, the court shall set as a definite term of imprisonment the minimum term prescribed by such statute or constitutional provision and may impose the fine prescribed by such statute or constitutional provision for the particular crime for which such person was convicted.
Under the Criminal Sentencing Act, the basic sentence that may be imposed for a fourth degree felony is eighteen months (
We remand this issue to the trial court for modification of defendant’s judgment, sentence and commitment order. On remand, the order should denominate defendant’s conviction for the offenses of issuing of worthless checks as “felonies”, rather than “fourth degree felonies.”
V. MOTION FOR A NEW TRIAL
Defendant argues that the trial court erred in failing to grant his motion for a new trial. Defendant’s motion was grounded upon the fact that the trial court failed to give proper weight to his testimony regarding advice he received from his bankruptcy attorney. At trial, the judge allowed defendant to testify regarding what the bankruptcy attorney had told him. The record reflects that this testimony was admitted. The trial court could properly weigh the effect of this evidence. See State v. McGhee, 103 N.M. 100, 703 P.2d 877 (1985). The motion for a new trial claimed that the affidavit from the bankruptcy attorney was new evidence, that the trial court did not accord full considеration to defendant’s testimony and that the evidence would probably change the result if a new trial were granted.
In denying defendant’s motion, the judge pointed out that the evidence did not fit within the criteria outlined in State v. Volpato, 102 N.M. 383, 696 P.2d 471 (1985). We agree. Defendant’s proffer of new evidence did not satisfy the Volpato criteria. The bankruptcy attorney was listed as a defense witness and, therefore, was not a newly discovered witness. Moreover, the trial court stated that the evidence would not have changed the court’s ruling. The grant or denial of a new trial is addressed to the sound discretion of the trial court and is reversible only upon a showing of a clear abusе of that discretion. State v. Perez, 95 N.M. 262, 620 P.2d 1287 (1980). The trial court did not abuse its discretion in denying defendant’s motion for a new trial.
VI. SUFFICIENCY OF EVIDENCE
Defendant claims the trial court lacked sufficient evidence to support his conviction. The trial court found that defendant issued three checks totalling $7,434.04, that he knew there were insufficient funds or credit with the bank, that he was ovеrdrawn by more than $7,000, and that he intended to cheat or deceive the victims at the time of issuing the checks. In reviewing a judgment of conviction, the appellate court views the evidence in the light most favorable to the verdict, resolving all conflicts therein, and viewing all reasonable inferences flowing therefrom in the light most favorаble to the judgment. State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978). Applying this standard, our review of the record and transcript reveals sufficient evidence to support the trial court’s findings.
Significant among other facts in the record, the evidence indicates that defendant had a long-term arrangement with his bank that it would cover overdraft checks if defendant made dеposits “within a day or two” of the overdraft. Defendant’s last positive balance was on May 14, 1985; the last deposit was made on May 21, 1985. Defendant then wrote approximately $7,400 worth of checks on May 31, June 1, and June 4, 1985. Defendant did not inquire with the bank what his balance was before writing these checks and circumstantial evidence exists indicating dеfendant knew that his bank funds were insufficient to cover these checks. Further, the record shows that defendant knew that he owed Coronado Center approximately $53,-000 in back rent and utilities, payable May 31, 1985. Even if defendant’s attempt to effect a lease assignment to a new tenant had been successful, defendant would not have hаd funds therefrom in hand at the time he wrote the checks in question. When defendant wrote the checks in question, he had only a tentative lease agreement, in addition to a $7,000 overdraft at the bank. Since defendant closed his business doors on June 2, 1985, there is circumstantial evidence that he knew he did not have sufficient receipts or deрosits to cover the checks he had just written. Given these facts, we cannot say the trial court lacked sufficient evidence to support its finding that defendant knew his funds were insufficient to cover the checks.
Defendant’s convictions are affirmed. The case is remanded for correction of the judgment and sentence as to the degree of felony for which defendant was charged and convicted.
IT IS SO ORDERED.
GARCIA and FRUMAN, JJ., concur.