State v. Sedillo

New Mexico Court of Appeals

State v. Sedillo

502 P.2d 318, 84 N.M. 293

CourtNew Mexico Court of Appeals

DecidedOctober 6, 1972

DocketNo. 960

StatusPublished

Cited by2 cases

This text of 502 P.2d 318 (State v. Sedillo) 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.

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State v. Sedillo, 502 P.2d 318, 84 N.M. 293 (N.M. Ct. App. 1972).

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OPINION

COWAN, Judge.

The defendant appeals from an order denying a motion for post-conviction relief filed pursuant to Rule 93 [§ 21-1-1(93), N.M.S.A.1953 (Repl.Vol. 4)]. He was convicted of rape in 1965 and his conviction was affirmed by the Supreme Court in State v. Sedillo, 76 N.M. 273, 414 P.2d 500 (1966). Thereafter he filed various motions to vacate the judgment and sentence, all of which were denied. An appeal was taken to the Supreme Court under Rule 93, supra, and was affirmed in State v. Sedillo, 79 N.M. 9, 439 P.2d 226 (1968). Another appeal, from a later denial of post-conviction relief, was affirmed by this court in State v. Sedillo, 81 N.M. 622, 471 P.2d 192 (Ct.App.1970).

Defendant presently contends that he was denied due process of law in that “the admitted evidence of his identification in a line-up was unfair.” He also contends that the trial court failed to instruct the jury as to the line-up in which he was identified. He tendered no instructions nor objected to any the court gave.

We affirm.

Defendant seeks a review by this court under the rule of fundamental error predicated on an unfair line-up and cites several cases in support of his position: Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); State v. Torres, 81 N. M. 521, 469 P.2d 166 (Ct.App.1970). These cases were all decided subsequent to his conviction and original appeal and, not having been made retroactive, do not apply here. State v. Garcia, 80 N.M. 21, 450 P.2d 621 (1969).

The matters urged for reversal are ones which should have been submitted to the appellate court for consideration on the original appeal. Proceedings under Rule 93 are not intended as a substitute for an appeal nor a method by which one can obtain consideration of questions which might have been raised on appeal. State v. Beachum, 83 N.M. 526, 494 P.2d 188 (Ct.App.1972).

The order denying relief is affirmed.

It is so ordered.

HENDLEY, J., concurs.

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OPINION

COWAN, Judge.

The defendant appeals from an order denying a motion for post-conviction relief filed pursuant to Rule 93 [§ 21-1-1(93), N.M.S.A.1953 (Repl.Vol. 4)]. He was convicted of rape in 1965 and his conviction was affirmed by the Supreme Court in State v. Sedillo, 76 N.M. 273, 414 P.2d 500 (1966). Thereafter he filed various motions to vacate the judgment and sentence, all of which were denied. An appeal was taken to the Supreme Court under Rule 93, supra, and was affirmed in State v. Sedillo, 79 N.M. 9, 439 P.2d 226 (1968). Another appeal, from a later denial of post-conviction relief, was affirmed by this court in State v. Sedillo, 81 N.M. 622, 471 P.2d 192 (Ct.App.1970).

Defendant presently contends that he was denied due process of law in that “the admitted evidence of his identification in a line-up was unfair.” He also contends that the trial court failed to instruct the jury as to the line-up in which he was identified. He tendered no instructions nor objected to any the court gave.

We affirm.

Defendant seeks a review by this court under the rule of fundamental error predicated on an unfair line-up and cites several cases in support of his position: Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); State v. Torres, 81 N. M. 521, 469 P.2d 166 (Ct.App.1970). These cases were all decided subsequent to his conviction and original appeal and, not having been made retroactive, do not apply here. State v. Garcia, 80 N.M. 21, 450 P.2d 621 (1969).

The matters urged for reversal are ones which should have been submitted to the appellate court for consideration on the original appeal. Proceedings under Rule 93 are not intended as a substitute for an appeal nor a method by which one can obtain consideration of questions which might have been raised on appeal. State v. Beachum, 83 N.M. 526, 494 P.2d 188 (Ct.App.1972).

The order denying relief is affirmed.

It is so ordered.

HENDLEY, J., concurs.

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