Matter of Lucio FT

888 P.2d 958, 119 N.M. 76
CourtNew Mexico Court of Appeals
DecidedNovember 3, 1994
Docket15413
StatusPublished
Cited by9 cases

This text of 888 P.2d 958 (Matter of Lucio FT) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matter of Lucio FT, 888 P.2d 958, 119 N.M. 76 (N.M. Ct. App. 1994).

Opinion

OPINION

DONNELLY, Judge.

Respondent appeals from an order of the children’s court revoking his probation and committing him to the New Mexico Boys’ School for a term not to exceed two years. The sole issue asserted by Respondent on appeal is whether the children’s court order revoking his probation violated his constitutional rights guaranteeing protection against double jeopardy. We affirm the judgment and disposition of the children’s court.

Respondent, while still a juvenile, was charged with the commission of three criminal offenses. On October 20, 1993, the children’s court dismissed two of the charges and Respondent admitted committing the offense of concealing his identity, contrary to NMSA 1978, Section 30-22-3 (Repl. Pamp.1994). Based upon Respondent’s admission of this offense, the children’s court ordered that Respondent be placed on probation for a period of two years. Less than twenty-four hours after being placed on probation, Respondent was arrested for possessing alcohol, concealing identity, evading or eluding an officer, and resisting arrest. Respondent was eighteen years old at the time of the commission of the latter offenses, and he was charged in municipal court as an adult. That same day, the children’s court’s attorney filed a petition to revoke Respondent’s prior juvenile probation based on the offenses committed by Respondent after he became an adult. On October 22, 1993, Respondent appeared in municipal court, pled -guilty to all of the charges, and was fined. Thereafter, Respondent was transferred to the juvenile detention center. On November 2,1993, Respondent filed a motion to dismiss the petition for revocation in children’s court, and admitted the allegations in the petition to revoke. The children’s court denied Respondent’s motion to dismiss the probation revocation proceedings and ordered that he be committed to the Children, Youth and Families Department, New Mexico Boys’ School, for a term not to exceed two years.

Respondent contends that the children’s court erred in denying his motion to dismiss, and argues that he suffered multiple punishments for the same acts in violation of his rights against double jeopardy. Specifically, he asserts that he was punished once for his offenses of possessing alcohol, concealing identity, evading or eluding an officer, and resisting arrest when he was convicted and fined in municipal court. He contends that he was punished a second time for the same offenses by the proceedings in the children’s court seeking to revoke his probation. We disagree that the order of the children’s court revoking Respondent’s probation violated his constitutional protections against double jeopardy.

Double jeopardy protects defendants from more than one criminal prosecution for the same criminal offense. Swafford v. State, 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991); cf. State v. Charlton, 115 N.M. 35, 39, 846 P.2d 341, 345 (Ct.App.1992) (both the United States Constitution and Article II, Section 15, of the New Mexico Constitution preclude multiple punishments for same offense), cert. denied, 114 N.M. 577, 844 P.2d 827 (1993). A probation revocation proceeding is not a new criminal trial to impose new punishment, but instead “is a hearing to determine whether, during the probationary ... period, the defendant has conformed to- or breached the course of conduct outlined in the probation ... order.” State v. Sanchez, 94 N.M. 521, 523, 612 P.2d 1332, 1334 (Ct.App.), cert. denied, 94 N.M. 675, 615 P.2d 992 (1980). The probationer’s punishment is imposed when he is sentenced originally, not when his probation is revoked. State v. Holland, 78 N.M. 324, 328, 431 P.2d 57, 61 (1967); State v. Castillo, 94 N.M. 352, 355, 610 P.2d 756, 759 (Ct.App.), cert. quashed, 94 N.M. 675, 615 P.2d 992 (1980). Any new disposition given as the result of revocation relates back to Respondent’s original delinquent act and replaces the original disposition. Castillo, 94 N.M. at 355, 610 P.2d at 759.

Since probation revocation proceedings are not directed at attempting to punish the original criminal activity but merely reassess whether the probationer may still be considered a good risk, the federal courts have routinely concluded that double jeopardy is not implicated in adult probation revocation proceedings. United States v. Clark, 984 F.2d 319, 320-21 (9th Cir.1993) (per curiam); United States v. Miller, 797 F.2d 336, 340-41 (6th Cir.1986); United States v. Whitney, 649 F.2d 296, 297-98 (5th Cir.1981) (per curiam). State courts in other jurisdictions have similarly concluded, with respect to adult offenders, that any punishment resulting from revocation of a defendant’s probation is punishment that relates to the person’s original offense, therefore, an individual’s subsequent prosecution for the same conduct in a new proceeding does not violate double jeopardy principles. See Merry v. State, 752 P.2d 472, 475 (Alaska Ct.App.1988); Lawrence v. State, 39 Ark.App. 39, 839 S.W.2d 10, 14-15 (1992) (en bane); State v. Ryerson, 20 Conn.App. 572, 570 A.2d 709, 713, cert. denied, 214 Conn. 806, 573 A.2d 318 (1990); Smith v. State, 171 Ga.App. 279, 319 S.E.2d 113, 117 (1984); Morris v. State, 166 Ga.App. 137, 303 S.E.2d 492, 495 (1983); Ashba v. State, 580 N.E.2d 244, 245 (Ind.1991), cert. denied, 503 U.S. 1007, 112 S.Ct. 1767, 118 L.Ed.2d 428 (1992); Johnson v. State, 512 N.E.2d 1090, 1091 (Ind.1987); State v. Quarles, 13 Kan. App.2d 51, 761 P.2d 317, 320, review denied, 244 Kan. 740 (1988); People v. Johnson, 191 Mich.App. 222, 477 N.W.2d 426, 429, appeal denied, 439 Mich. 858 (1991); State v. Lange, 237 Mont. 486, 775 P.2d 213, 215 (1989); State v. Kelley, 119 Or.App. 496, 850 P.2d 1170, 1171 (1993) (per curiam); State v. Chase, 588 A.2d 120, 122 (R.I.1991); Manning v. State, 870 S.W.2d 200, 202-03 (Tex.Ct.App.), review ref'd (Tex. Oct. 12, 1994); State v. Holcomb, 178 W.Va. 455, 360 S.E.2d 232, 239 (1987).

Respondent acknowledges that the foregoing rule has been held applicable to adults; however, he contends that this result is inapplicable to children in New Mexico. He further argues that a juvenile probation revocation is a new adjudicatory proceeding because the sentencing options available for a child’s probation are more expansive than those options for adult probation. See State v. Henry L., 109 N.M. 792, 794, 791 P.2d 67, 69 (Ct.App.) (after a probation violation an adult’s sentence may not be increased, however, a child’s sentence may be increased), cert. denied, 109 N.M. 704, 789 P.2d 1271 (1990); State v. Donaldson, 100 N.M. 111, 119, 666 P.2d 1258

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Bluebook (online)
888 P.2d 958, 119 N.M. 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-lucio-ft-nmctapp-1994.