Supreme Court of New Mexico
Decision Information
State v. Franklin - cited by 481 documents
State v. Garcia - cited by 16 documents
State v. Moser - cited by 122 documents
Decision Content
STATE V. GARCIA, 1967-NMSC-230, 78 N.M.
578, 434 P.2d 697 (S. Ct. 1967)
CASE HISTORY ALERT: see ¶5 - affects
1951-NMSC-065
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
PAUL GARCIA, Defendant-Appellant
No. 8283
SUPREME COURT OF NEW MEXICO
1967-NMSC-230, 78 N.M. 578, 434 P.2d 697
October 09, 1967
Appeal from the District Court of Bernalillo County, Larrazolo, Judge.
COUNSEL
BOSTON E. WITT, Attorney General, EDWARD R. PEARSON, TOM OVERSTREET, Assistant Attorneys General, Santa Fe, New Mexico, Attorneys for Appellee.
HANNA & MERCER, Albuquerque, New Mexico, Attorneys for Appellant.
JUDGES
CARMODY, Justice, wrote the opinion.
WE CONCUR:
M. E. Noble, J., Irwin S. Moise, J.
OPINION
{*579} CARMODY, Justice.
{1} This in an appeal from the denial, without a hearing, of appellant's motion to vacate his sentence, filed under Rule 93 (§ 21-1-1 (93, N.M.S.A. 1953, 1967 Pocket Supp.).
{2} Appellant, by informal petition, claimed that his original conviction in 1952, which was affirmed by us in State v. Garcia, 1953, 57 N.M. 665, 262 P.2d 233, was a denial of due process, upon several grounds.
{3} The trial court did not appoint counsel and found that, according to the files and records of the case, it was conclusively shown that appellant was entitled to no relief, generally upon the theory that appellant, by going to trial and subsequently appealing, had effectively waived the rights there asserted.
{4} We do not reach a decision with respect to the waiver of any of such rights, because, in our opinion, the facts alleged in the petition coupled with the state of the record are sufficient to warrant a hearing under the rule. State v. Moser, 1967, 78 N.M. 212, 430 P.2d 106; and State v. Franklin, 1967, 78 N.M. 127, 428 P.2d 982. In making this determination, we take note of the fact that our unreported decision in HC No. 457, Garcia v. Cox, was not called to the attention of the trial judge prior to his denial of appellant's motion. It was not a part of the record before him, and is not considered by us at this time. Upon reconsideration of the motion by the trial court, our decision in HC No. 457 may be helpful in disposing of at least some of appellant's claims.
{5} It follows the case must be reversed and remanded to the trial court with direction to vacate the judgment appealed from and grant to the appellant a hearing upon his allegations in accordance with the rule. IT IS SO ORDERED.
WE CONCUR:
M. E. Noble, J., Irwin S. Moise, J.