State v. Stover

• Court: New Mexico Court of Appeals
• Decided: July 27, 2011
• Docket: 31,229
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 STATE OF NEW MEXICO,

8 Plaintiff-Appellee,

9 v. NO. 31,229

10 AMANDA STOVER a/k/a 11 AMANDA STOEVER,

12 Defendant-Appellant.

13 APPEAL FROM THE DISTRICT COURT OF CATRON COUNTY 14 Kevin Sweazea, District Judge

15 Gary K. King, Attorney General 16 Santa Fe, NM

17 for Appellee

18 Amanda Stover 19 Reserve, NM

20 Pro Se Appellant

21 MEMORANDUM OPINION

22 VANZI, Judge.

23 Defendant, pro se, appeals from an order of the district court, entered

24 pursuant to a plea of no contest, convicting Defendant for failing to register her 1 vehicle, driving without a license or insurance, and speeding. Unpersuaded by

2 Defendant’s arguments, we issued a notice of proposed summary disposition,

3 proposing to affirm. Defendant has responded with an informal memorandum in

4 opposition. We have considered Defendant’s contentions and remain persuaded that

5 she has not demonstrated error. We affirm the district court’s judgment.

6 We interpret Defendant’s informal docketing statement to argue that she has a

7 constitutional right to travel without a license or, generally, without governmental

8 regulation. [RP 36] We proposed to disagree with Defendant. In response to our

9 notice, Defendant continues to argue that the right to travel includes the right to drive

10 a vehicle on state roads. [MIO 6-10] Defendant contends that this is a common law

11 and natural right protected by the United States Constitution. [MIO 7-10] We are not

12 persuaded.

13 Operating a motor vehicle is not a natural or unrestrained right, but a privilege,

14 subject to reasonable regulations. See State ex rel. Schwartz v. Kennedy, 120 N.M.

15 619, 632, 904 P.2d 1044, 1057 (1995) (recognizing that the state government regulates

16 activity of driving in the interest of the public’s safety and general welfare); Johnson

17 v. Sanchez, 67 N.M. 41, 46, 351 P.2d 449, 452 (1960) (recognizing that a license to

18 operate a motor vehicle is a mere privilege, and not a property right, and is subject to

19 reasonable regulation under the police power in the interest of public safety and

2 1 welfare). As we stated in our notice, clearly, it is within the constitutionally ordained

2 police power of the Legislature to regulate public roads and highways and travel

3 thereon. See, e.g., Otto v. Buck, 61 N.M. 123, 130, 295 P.2d 1028, 1033 (1956) (“To

4 state that the subject of regulation of vehicular traffic upon public highways properly

5 comes within exercise of the police power is but to announce a commonplace, against

6 which no one would seriously contend.”). It is not open for sincere debate that

7 operating a motor vehicle in New Mexico “is a privilege, and not a right.” ACLU v.

8 City of Albuquerque, 2007-NMCA-092, ¶ 17, 142 N.M. 259, 164 P.3d 958; In re

9 Suazo, 117 N.M. 785, 794, 877 P.2d 1088, 1097 (1994) (Baca, J., specially

10 concurring).

11 Also in response to our notice, Defendant states she had a revelation that a more

12 pressing violation of her constitutional rights has occurred: the State is forcing her to

13 enter into a contract via a driver’s license, which violates the constitutional principal

14 prohibiting ex post facto laws. [MIO 3] Defendant goes on to complain about judges

15 who intentionally subordinate constitutional rights to statutory law. [MIO 4-6]

16 Defendant should have raised these matters in a motion to amend the docketing

17 statement. Defendant did not preserve these matters in district court, however, and we

18 would deny the motion to add the issues as not viable. See State v. Rael, 100 N.M.

19 193, 197, 668 P.2d 309, 313 (Ct. App. 1983) (noting that we will grant a motion to

3 1 amend where, among other factors, the motion explains how the issue was preserved);

2 State v. Moore, 109 N.M. 119, 129, 782 P.2d 91, 101 (Ct. App. 1989) (stating that this

3 Court will deny motions to amend that raise issues that are not viable, even if they

4 allege fundamental or jurisdictional error), superceded by rule on other grounds as

5 recognized in State v. Salgado, 112 N.M. 537, 817 P.2d 730 (Ct. App. 1991).

6 To the extent that Defendant complains that there has been no review of the

7 proceedings in magistrate court, we again point out that the trial in district court was

8 de novo and, therefore, review of the magistrate court would be improper. See Rule

9 6-703(J) NMRA. [MIO 6] A trial de novo in the district court means that the appeal

10 “shall be tried anew in said courts on their merits, as if no trial had been had below[.]”

11 NMSA 1978, § 39-3-1 (1955).

12 Lastly, we addressed Defendant’s argument that she was improperly denied the

13 right to representation, assuming that she had preserved the matter in district court and

14 reserved the right to appeal on that matter. In response to our notice, Defendant does

15 not explain how it was preserved in district court or reserved in the plea agreement.

16 Rather, Defendant’s arguments are aimed at the magistrate court. [MIO 2-3] Thus,

17 Defendant has not demonstrated that she reserved the right to appeal this matter in the

18 plea agreement. A defendant’s right to appeal following a guilty plea is limited to

19 jurisdictional challenges and those issues specifically reserved in the plea agreement.

4 1 See State v. Hodge, 118 N.M. 410, 414-18, 882 P.2d 1, 5-9 (1994); Rule 5-304(A)(2)

2 NMRA (“With the approval of the court and the consent of the state, a defendant may

3 enter a conditional plea of guilty or no contest, reserving in writing the right, on

4 appeal from the judgment, to review of the adverse determination of any specified

5 pre-trial motion.”). We also note that we are not persuaded that Defendant had a right

6 to representation for the reasons stated in our notice.

7 Based on the foregoing, we affirm the district court’s judgment and sentence.

8 IT IS SO ORDERED.

9 __________________________________ 10 LINDA M. VANZI, Judge

11 WE CONCUR:

12 _________________________________ 13 CELIA FOY CASTILLO, Chief Judge

14 _________________________________ 15 TIMOTHY L. GARCIA, Judge