State v. NajarState v. Najar
- Reporters:
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- Before:
- Flores
Defendant was convicted of escape from an inmate-release program under
Defendant raises the double jeopardy issue for the first time on appeal. However, “double jeopardy may be raised at any stage of a criminal proceeding^]” State v. Haddenham, 110 N.M. 149, 151, 793 P.2d 279, 281 (Ct.App.), certs. denied, 110 N.M. 72, 792 P.2d 49 and 110 N.M. 183, 793 P.2d 865 (1990); thus, Defendant has properly raised the issue for the first time on appeal. See id.;
DISCUSSION
The basis for Defendant’s issue lies in the statutory scheme for punishing escapes. Escape from the penitentiary is punished as a second degree felony.
We are not persuaded by Defendant’s argument that the same facts or status gave rise to multiple punishments. Nor are we persuaded by Defendant’s reliance on Haddenham, a consolidated case involving two defendants and two different trial courts. In Haddenham, this Court held that the trial courts erred in applying the habitual offender enhancement to the convictions for felon in possession of a firearm because the same prior felony convictions used to enhance the sentences were relied upon to establish that each defendant was a felon, an essential element of each of the underlying firearm possession convictions. In the instant case, Defendant’s status as a felon is not an element of the underlying conviction for escape from an inmate-release program. See
Nor are we persuaded by the second prong of Defendant’s double jeopardy argument, that the legislature already took into consideration prior felonies when setting the penalty for escape. See State v. Keith, 102 N.M. 462, 697 P.2d 145 (Ct.App.), cert. denied, 102 N.M. 492, 697 P.2d 492 (1985). In Keith, this Court held that the legislature did not intend application of double enhancements of a current armed robbery conviction under both the general habitual enhancement statute and the robbery enhancement statute. Id. at 465, 697 P.2d at 148. However, the statute involved in Keith,
Here, we do not read the penalty provision of the escape statute as an enhancement statute imposing a penalty for a prior felony conviction. Although escape from a jail inmate-release program is a fourth degree felony while escape from a penitentiary inmate-release program is a third degree felony, the place or constructive place of incarceration depends on the length of the sentence imposed rather than on a defendant’s status as a felon or misdemeanant. See
CONCLUSION
Based on the foregoing, we hold that the imposition of the habitual offender enhancement was proper and affirm the trial court’s judgment and sentence.
IT IS SO ORDERED.
MINZNER, C.J., and PICKARD, J., concur.