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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. 34,939 5 DYLAN MAHO, 6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Mark A. Macaron, District Judge
9 Hector H. Balderas, Attorney General 10 Maris Veidemanis, Assistant Attorney General 11 Santa Fe, NM
12 for Appellee
13 Jorge A. Alvarado, Chief Public Defender 14 Santa Fe, NM 15 Cherylinn Gunning, Assistant Appellate Defender 16 Albuquerque, NM
17 for Appellant 18 MEMORANDUM OPINION 19 HANISEE, Judge. 20 {1} Defendant Dylan Maho appeals from an order revoking his probation. [DS 3; 21 RP 127, 133] We issued a notice proposing to reverse. The State filed a memorandum
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1 in opposition, which we have duly considered. We are not persuaded by the State’s 2 arguments and therefore reverse. 3 {2} As discussed in our notice of proposed disposition, Defendant pled no contest 4 to three counts of voyerurism (under the age of 18), pursuant to a plea and disposition 5 agreement that was entered on May 2, 2014 [RP 35]; the sentencing hearing was held 6 on December 11, 2014, at which time Defendant was sentenced to serve 364 days in 7 the Community Custody Program (CCP) in the Metropolitan Detention Center 8 (MDC), followed by three years of supervised probation [RP 96]; and the judgment 9 was entered on April 6, 2015 [RP 96]. [CN 2] Subsequent to his sentencing hearing 10 and prior to entry of the written judgment, Defendant voluntarily reported to the 11 probation office because “MDC would not accept him at CCP due to a lack of any 12 court order or other official paperwork stating that he was supposed to be taken into 13 custody.” [CN 2-3 (quoting RP 100)] According to trial counsel, “[a]lthough 14 [Defendant] was not supposed to be reporting to probation, the probation division 15 undertook to supervise him.” [CN 3 (quoting RP 100)] The State filed its first motion 16 to revoke Defendant’s probation on March 25, 2015, before entry of the judgment. 17 [CN 3; RP 84; see also RP 106 (addendum to the motion to revoke probation, filed 18 May 4, 2015)] The order revoking Defendant’s probation, entered on July 15, 2015, 19 was based on violations charged in the first motion to revoke probation and the
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1 addendum to the motion to revoke probation. [CN 3; RP 127] 2 {3} Given the procedural history in this case, we proposed to conclude that the 3 district court lacked the authority to revoke Defendant’s probation because he was not 4 on probation at the time that he allegedly violated probation. [CN 3-4] We also noted 5 that, according to the judgment, Defendant was sentenced to “supervised probation 6 for three (3) years following release from custody[.]” [CN 4 (quoting RP 97 (emphasis 7 added))] 8 {4} In response to our notice of proposed disposition, the State argues that the 9 district court had the authority to revoke Defendant’s probation for two reasons. First, 10 the State asserts that “it is well established that a court has the authority to revoke a 11 defendant’s probation even before the probationary period has begun.” [MIO 1, 3-5] 12 In support of this argument, the State relies on State v. Lopez, 2007-NMSC-011, 141 13 N.M. 293, 154 P.3d 668. [MIO 4] In Lopez, our Supreme Court held that “after the 14 court has entered an order of probation and before the full suspended sentence has 15 expired, the court has the authority to revoke probation regardless of whether the 16 probationary term has commenced, or whether a defendant is serving a portion of the 17 underlying sentence.” Id. ¶ 15; see also State v. Padilla, 1987-NMCA-116, ¶ 7, 106 18 N.M. 420, 744 P.2d 548 (“The sentencing court retains jurisdiction to revoke a 19 suspended sentence for good cause shown at any time subsequent to the entry of
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1 judgment and prior to the expiration of the sentence.”). In the present case, some of 2 the alleged probation violations occurred prior to entry of the written judgment and 3 sentence. Therefore, we are not persuaded by the State’s argument that “under the 4 controlling case law[,] the trial court had the authority to revoke Defendant’s 5 probation even though his probationary period had not yet begun.” [MIO 5] 6 {5} In its second argument, the State asserts that the district court had the authority 7 to revoke Defendant’s probation after its oral sentencing order on December 11, 2014, 8 but before the underlying judgment was entered on April 6, 2015, because “the written 9 judgment did not differ from the oral order.” [MIO 5] The State does not dispute that 10 “[i]t is well established that an oral ruling by the trial court is not a final judgment, and 11 that the trial court can change such ruling at any time before the entry of written 12 judgment.” State v. Diaz, 1983-NMSC-090, ¶ 4, 100 N.M. 524, 673 P.2d 501; see also 13 State v. Lohberger, 2008-NMSC-033, ¶ 20, 144 N.M. 297, 187 P.3d 162 (“[A] trial 14 court’s oral announcement of a result is not final, and parties to the case should have 15 no reasonable expectation of its finality.”); State v. Vaughn, 2005-NMCA-076, ¶ 15, 16 137 N.M. 674, 114 P.3d 354 (“The general rule in New Mexico is that an oral ruling 17 by a trial court is not final and, with only limited exceptions, it is not binding.”). [MIO 18 5] Instead, the State argues that, pursuant to State v. Porras, 1999-NMCA-016, 126 19 N.M. 628, 973 P.2d 880, “Defendant (and the State) ‘had a reasonable expectation in
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1 the finality’ of this oral sentence, and Defendant acted on that expectation” when he 2 voluntarily reported to the probation office. [MIO 5-6; RP 100] 3 {6} The facts in Porras are distinguishable from those in this case. In Porras, the 4 defendant was sentenced for two counts of fraudulent use of a credit card on July 7, 5 1997, at which time he was remanded to the custody of the sheriff; the defendant 6 remained in custody until August 18, 1997, at which time a trial was held on his 7 habitual offender charge; following the trial on the habitual offender charge, the trial 8 court increased the sentence on the underlying charges. 1999-NMCA-016, ¶¶ 1, 3-5. 9 The defendant appealed the increased sentence and argued that once he began serving 10 his original ninety-day sentence, the trial court was precluded from increasing the 11 sentence on the underlying charges, regardless of whether the sentence could be 12 increased based upon his habitual offender status. Id. ¶ 6. We agreed and held that, on 13 the facts in that case, “[the d]efendant had a reasonable expectation in the finality of 14 the oral sentence when he was incarcerated on that sentence, regardless of the fact that 15 it had not been reduced to writing.” Id. ¶ 14. 16 {7} The facts in the present case are more akin to those in State v. Rushing, 17 1985-NMCA-091, 103 N.M. 333, 706 P.2d 875. In Rushing, we reaffirmed the 18 principle in New Mexico that “[a]n oral pronouncement is not a final judgment and 19 is subject to change until reduced to writing.” Id. ¶ 6. We also rejected the defendant’s
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1 argument that he had begun to serve the orally-imposed sentence by reporting to the 2 probation office to sign the standard probation form and paying the fee for probation 3 costs, and that under those circumstances, he had a reasonable expectation of finality 4 in the oral ruling, such that the trial court could not increase his sentence. Id. ¶¶ 6-7. 5 We held that the “defendant had not commenced to serve his sentence because the 6 actions on which he relies created no reasonable expectations of finality.” Id. ¶ 10. 7 {8} Having considered the State’s arguments and not finding them persuasive, we 8 hold that the district court lacked the authority to revoke Defendant’s probation. 9 Accordingly, for the reasons stated in this opinion and in our notice of proposed 10 summary disposition, we reverse. 11 {9} IT IS SO ORDERED.
12 _____________________________ 13 J. MILES HANISEE, Judge 14 WE CONCUR:
15 __________________________________ 16 JAMES J. WECHSLER, Judge
17 __________________________________ 18 MICHAEL D. BUSTAMANTE, Judge