State v. SosaState v. Sosa
- Reporters:
- ,
- Before:
- James J. Wechsler, Linda M. Vanzi, Timothy L. Garcia
Santa Fe, NM
M. Victoria Wilson, Assistant Attorney General
Albuquerque, NM
for Appellee
Angelica Hall
Albuquerque, NM
for Appellant
WECHSLER, Judge.
{1} The legal issue presented in this appeal is whether a district court can exercise jurisdiction over a defendant after the expiration of a probationary term for the limited purpose of determining fugitive status under
BACKGROUND
{2} Defendant was sentenced on April 3, 2007 to twenty-four years of incarceration with two years of parole. The court suspended the sentence and ordered Defendant to be placed on five years of supervised probation with a credit of one hundred and three days of pre-sentence confinement. On December 27, 2010, the State filed a petition to revoke Defendant‘s probation in which, among other violations, it alleged that Defendant failed to report to his probation officer on October 20, 2010 and that Defendant was a “fugitive from justice because a warrant for his return cannot be served.” A bench warrant was issued on December 28, 2010 and, on January 3, 2011, the warrant was entered into the National Crime Information Center database. On July 16, 2011, Defendant was arrested in the state of Georgia and, on August 4, 2011, he was returned to custody in New Mexico. A hearing on the State‘s petition to revoke Defendant‘s probation was set for August 31, 2011. Ultimately, the hearing was not held until almost one year later, on August 1, 2012. Among the reasons for the delay were two motions to continue by Defendant, one of which included Defendant‘s waiver of time requirements to adjudicate the probation violation.
{3} On July 30, 2012, Defendant filed a motion to dismiss the State‘s petition to revoke probation. Defendant argued that the State‘s petition to revoke probation must be dismissed because the district court lost jurisdiction to revoke his probation on December 23, 2011, when his original probation term of five years less one hundred and three days expired. Defendant argued that under State v. Lara, 2000-NMCA-073, ¶ 11, 129 N.M. 391, 9 P.3d 74, the court could not revoke Defendant‘s probation after December 23, 2011, even for probation violations committed and revocation motions filed prior to that date.
{4} At the August 1, 2012 hearing, the State argued that the district court retained jurisdiction because Defendant was a fugitive from October 20, 2010 to August 4, 2011 and, therefore, Defendant‘s term of probation was tolled between those dates. Defendant initially disputed the tolling dates offered by the State, asserting that he could not be declared a fugitive prior to the December 28, 2010 warrant. Defendant changed his position later in the hearing; he proffered to the court an arrest order issued by the Department of Corrections Adult Probation and Parole on October 15, 2010 and conceded that this order provided a basis for finding that Defendant was a fugitive from justice. The State offered to present evidence of its attempts to serve Defendant, but Defendant stated that he would not dispute those efforts. The court subsequently found that by stipulation of the parties the State was “due and diligent in its efforts to prepare and serve an arrest warrant on . . . Defendant.” The court further found that Defendant was a fugitive from October 20, 2010 to August 4, 2011, tolled Defendant‘s time served on probation for that period, and denied Defendant‘s motion to dismiss for lack of jurisdiction. It revoked Defendant‘s probation and sentenced him to ten years of incarceration to be followed by five years of supervised probation.
{5} Defendant timely appealed. He argues that the district court committed error when it exercised jurisdiction to toll his probation
STANDARD OF REVIEW
{6} In relevant part,
{7} A district court‘s determination of whether a probationer is a fugitive must be supported by substantial evidence. State v. Jimenez, 2004-NMSC-012, ¶ 14, 135 N.M. 442, 90 P.3d 461. “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. When we review for substantial evidence, we “resolve all disputed facts in favor of the [district] court‘s decision, indulge all reasonable inferences in support of that decision, and disregard all inferences to the contrary.” Jimenez, 2004-NMSC-012, ¶ 14 (internal quotation marks and citation omitted).
TOLLING WAS APPROPRIATE UNDER SECTION 31-21-15
{8} A court generally loses jurisdiction to revoke probation when the term of probation expires, even when the probation violation took place during the term of probation and a motion to revoke probation was filed prior to the expiration of the probationary term. See State v. Ordunez, 2012-NMSC-024, ¶ 9, 283 P.3d 282 (stating that our statutes have for decades been interpreted by our courts “as depriving courts of jurisdiction to revoke probation or to impose any sanctions for violation of probation conditions once the probationary period has expired, even for violations occurring and revocation motions filed before expiration of probation“). Accordingly, a motion to revoke probation must be heard and ruled upon prior to the end of a defendant‘s term of probation. See Lara, 2000-NMCA-073, ¶ 12 (“If the [s]tate seeks a certificate of unsatisfactory completion, it must obtain an order of the court prior to the end of the defendant‘s probation term.“). However, our Legislature has provided an exception. Under
{9} Under our case law, a district court retains jurisdiction for the purpose of applying
{10} As we have noted,
{11} The touchstone of our interpretation of
{12} Defendant‘s reliance on Torres is misplaced. The facts in Torres are different from the facts in this case. In Torres, the probationer became an absconder toward the end of his probationary period and remained so until well after his original probationary term ended. No. 29,067, mem. op. *1. Because the State was unable to prove sufficient effort on its part to serve a warrant or the futility of such efforts, the probationer in Torres was held not to be a fugitive. Id. *3. The State asked for a remand to determine
{13} We recognize the merit of Defendant‘s concern that the district court cannot maintain jurisdiction “for an indefinite duration” after the end of a probationer‘s term of probation for the purpose of determining whether fugitive status allows for tolling. But this concern is equally present when a probationer is returned to the jurisdiction after the end of a probationary term. Defendant does not challenge that a court can determine fugitive status under that circumstance. See Apache, 1986-NMCA-051, ¶ 12 (holding that a court retains jurisdiction to determine fugitive status “regardless of whether this occurs before or after the date on which probation was originally to have expired“). Similar due process concerns exist whether a probationer is returned to the jurisdiction before or after the end of the probationary period and, given the purpose of
{14}
THE DISTRICT COURT UTILIZED THE APPLICABLE TEST TO RULE THAT TOLLING WAS APPROPRIATE
{15} Defendant also asserts that the district court committed error when it determined that Defendant was a fugitive because the court failed to apply the appropriate test. A probationer is a fugitive only when the State can prove either that: (1) it attempted to serve a warrant but was unsuccessful, or (2) any such attempt would have been futile. Jimenez, 2004-NMSC-012, ¶ 8; State v. Thomas, 1991-NMCA-131, ¶ 10, 113 N.M. 298, 825 P.2d 231, overruled on other grounds by Jimenez, 2004-NMSC-012. Under this test, the State must demonstrate that it was diligent in attempting to bring the probationer before the court. See Jimenez, 2004-NMSC-012, ¶ 8 (“This test . . . requir[es] the [s]tate to act with due diligence in prosecuting defendants who violate the terms of their probation[.]“); Neal, 2007-NMCA-086, ¶ 34 (“At a minimum, the state must present some evidence that ‘raises a reasonable inference that the warrant could not be served with reasonable diligence.‘” (quoting Thomas, 1991-NMCA-131, ¶ 16)).
{16} The district court explicitly found that the State was “due and diligent” in its efforts to serve a warrant on Defendant. And although an explicit or formal finding that a probationer is a fugitive is not required, Thomas, 1991-NMCA-131, ¶ 12, in this case, the court made such a finding. Defendant has not demonstrated that the court failed to apply the correct test to determine that Defendant was a fugitive.
{17} Defendant lastly contends that the State did not present sufficient evidence for the court to find that Defendant was a fugitive from justice and not merely an absconder. Defendant‘s contention, however, is undermined by the fact that he forestalled the State‘s offer to put on this evidence. The State notified the court that it had officers present to testify to their efforts to carry out the warrant and was prepared to offer evidence of its efforts to serve Defendant, but Defendant interrupted, explicitly conceding the State‘s efforts. Additionally, Defendant verbally renounced his position that tolling applied no sooner than December 2010 while presenting the arrest order dated October 15, 2010 to the court. The court relied on the stipulation of the parties to find that the State was due and diligent in its efforts to serve Defendant to find that he was a fugitive from October 20, 2010. We therefore decline to hold that the district court‘s finding was unsupported by substantial evidence.
CONCLUSION
{18} We affirm the district court‘s revocation of Defendant‘s probation.
{19} IT IS SO ORDERED.
JAMES J. WECHSLER, Judge
WE CONCUR:
LINDA M. VANZI, Judge
TIMOTHY L. GARCIA, Judge