Leroy WOODS, Petitioner-Appellant, v. STATE of New Mexico, Respondent-Appellee.
No. 943.
Court of Appeals of New Mexico.
Sept. 15, 1972.
501 P.2d 692
There was substantial evidence to sustain Chavez‘s conviction.
Affirmed.
It is so ordered.
WOOD, C. J., and HERNANDEZ, J., concur.
David L. Norvell, Atty. Gen., Ronald Van Amberg, Asst. Atty. Gen., Santa Fe, for respondent-appellee.
OPINION
WOOD, Chief Judge.
Petitioner‘s conviction for aggravated assault under
1. He claims there was a lack of substantial evidence to support his conviction for aggravated assault. An asserted insufficiency of the evidence is not a ground upon which postconviction relief may be obtained. Andrada v. State, 83 N. M. 393, 492 P.2d 1010 (Ct.App.1971); State v. Bonney, 82 N.M. 508, 484 P.2d 350 (Ct.App.1971). Further, this issue was raised, and decided adverse to petitioner, in State v. Woods, supra. Even if the sufficiency of the evidence was a cognizable issue in postconviction proceedings, it could not be relitigated after having been previously decided on appeal. Miller v. State, 82 N.M. 68, 475 P.2d 462 (Ct.App.1970).
2. He claims he was never given a preliminary hearing. The record in State v. Woods, supra, shows that petitioner was indicted by a grand jury. Thus, he did not have a right to a preliminary hearing. State v. Burk, 82 N.M. 466, 483 P.2d 940 (Ct.App.1971), cert. denied, 404 U.S. 955, 92 S.Ct. 309, 30 L.Ed.2d 271 (1971).
3. He claims he was never taken before a magistrate and advised of his rights. See
4. He claims he has been subjected to double jeopardy as follows: ” . . . He was arrested on this same charge and remained in jail for four 4 days, and was find [sic] fifty, 50.00 and put back to work on his job, and was ree [sic] arrested after paying his fine. And charged all over again for the same offense of assault . . . this is Double Jeopardy. . . . ”
In arguing this fourth claim, both petitioner and the State refer to a “first” conviction for assault in the municipal court of Clovis, New Mexico, and the “second” conviction for aggravated assault affirmed in State v. Woods, supra. We do not know how Clovis may define “assault” in its ordinance; thus, we cannot say that the “assault” for which petitioner alleges he was first convicted was not a lessor offense included within the aggravated assault of
State v. Goodson, 54 N.M. 184, 217 P.2d 262 (1950) approved the rule that an acquittal or conviction for a minor offense included in a greater will not bar a prosecution for the greater if the court in which the acquittal or conviction was had was without jurisdiction to try the accused for
However, the Supreme Court of the United States, by Chief Justice Burger, held this rule to be erroneous in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), reh. denied, 398 U.S. 914, 90 S.Ct. 1684, 26 L.Ed.2d 79 (1970). Thus, under Waller, supra, the prior conviction in municipal court may be a bar to subsequent prosecution in district court under the constitutional prohibition against double jeopardy.
Whether such a bar exists depends on the facts. If the factual basis for the alleged conviction for assault in municipal court (if in fact there be one), and the factual basis for the aggravated assault conviction differ, then there would be no double jeopardy. State v. Goodson, supra; State v. Anaya, 83 N.M. 672, 495 P.2d 1388 (Ct.App.1972); State v. Gleason, 80 N.M. 382, 456 P.2d 215 (Ct.App.1969); State v. Mares, supra.
The claim of double jeopardy goes outside the record in State v. Woods, supra, and thus the “files and records of the case” do not conclusively show Woods is not entitled to relief under that claim. He is entitled to an evidentiary hearing on that claim,
The order denying relief without an evidentiary hearing is affirmed as to all claims except the double jeopardy claim. The order denying relief on the double jeopardy claim is reversed, and as to that claim alone, the cause is remanded for an evidentiary hearing.
It is so ordered.
HERNANDEZ, J., concurs.
SUTIN, J., specially concurring.
SUTIN, Judge (specially concurring).
I specially concur in the majority opinion.
At the time of the hearing in the district court, the burden will be on Woods, not only “to prove a factual basis showing double jeopardy,” but he must prove, (1) the legal existence of a municipal court in Clovis, New Mexico; (2) its jurisdiction to try Woods for assault; (3) the ordinance under which Woods pled guilty; (4) the municipal court record of the conviction and sentence.
This court does not take judicial notice of these matters.
In Waller, cited in the majority opinion, the Constitution of Florida granted judicial power also in municipal courts to be established by the legislature. This abolished the “separate sovereignty theory,” a theory which need not be discussed here, because a trial in a municipal court “springs from the same organic law that created the state court of general jurisdiction in which petitioner was tried and convicted of a felony.”
By reason of Waller, State v. Goodson, 54 N.M. 184, 217 P.2d 262 (1950), and State v. Mares, 79 N.M. 327, 442 P.2d 817 (Ct.App.1968), are overruled subject to review in the Supreme Court.
The state should seek a review in the Supreme Court by writ of certiorari. In
However,