Court of Appeals of New Mexico
Decision Information
Chapter 31 - Criminal Procedure - cited by 3,637 documents
Citations - New Mexico Appellate Reports
State v. Garcia - cited by 52 documents
State v. James - cited by 48 documents
State v. Stout - cited by 95 documents
Decision Content
STATE V. OGLESBY, 1981-NMCA-070, 96 N.M. 352, 630 P.2d 304 (Ct. App. 1981)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
OMER J. OGLESBY, Defendant-Appellant
No. 5104
COURT OF APPEALS OF NEW MEXICO
1981-NMCA-070, 96 N.M. 352, 630 P.2d 304
June 11, 1981
Appeal from the District Court of Luna County, Hughes, Judge.
COUNSEL
JOHN B. BIGELOW, Chief Public Defender, MARTHA A. DALY, Appellate Defender, Santa Fe, New Mexico, Attorneys for Appellant.
JEFF BINGAMAN, Attorney General, Santa Fe, New Mexico, Attorney for Appellee.
JUDGES
Hendley, J., wrote the opinion. WE CONCUR: B. C. Hernandez, C.J., Ramon Lopez, J.
OPINION
{*353} HENDLEY, Judge.
{1} Defendant appeals from a finding and sentence as an habitual offender, pursuant to § 31-18-17, N.M.S.A. 1978 (Supp. 1980). This case was assigned to the summary calendar with affirmance proposed. Defendant has filed a timely memorandum in opposition in which he addresses the issue of a double jeopardy violation. We are bound to follow the dictates of our Supreme Court in this regard. That Court has held that the imposition of an enhanced sentence after defendant has already begun serving his sentence on the underlying felony conviction is not violative of constitutional double jeopardy provisions. State v. Garcia, 95 N.M. 260, 620 P.2d 1285 (1981); State v. James, 94 N.M. 604, 614 P.2d 16 (1980). See also, State v. Stout, 96 N.M. 29, 627 P.2d 871 (1981).
{2} Defendant does not contest our proposed disposition on the basis of the ex post facto laws. However, this issue merits a brief comment. The Habitual Offender Act is not an ex post facto law since it is procedural in nature. State v. Bevelle, 527 S.W.2d 657 (Mo. App. 1975). Moreover, it does not punish criminals for earlier offenses, but merely increases the penalty for the repetition of criminal conduct. Beland v. United States, 128 F.2d 795 (5th Cir. 1942); People v. Stone, 159 P.2d 701, 69 Cal. App.2d 533 (1945).
{3} Accordingly, defendant's conviction as an habitual offender is affirmed.
{4} IT IS SO ORDERED.
HERNANDEZ, C.J., and LOPEZ, J., concur.