State v. Gaddy , 110 N.M. 120 ( 1990 )

OPINION

ALARID, Judge.

Defendant appeals the enhancement of his sentence as a habitual offender. The dispositive issue in the case is whether the district court had jurisdiction to determine defendant’s status as a repeat offender when the court made that determination only after defendant had completely served his underlying sentence. We reverse. FACTS

Defendant was convicted of a felony on July 5, 1985. On September 17, 1985, he was sentenced to three years in prison followed by two years of parole. Defendant was released from prison on September 17, 1987, and then was re-imprisoned for violation of the terms of his parole. On May 26, 1988, almost three years after the underlying sentence was imposed and while defendant was still serving the parole portion of his sentence in the penitentiary, the state filed a supplemental information charging defendant as a habitual offender. On November 21, 1988, defendant completed the prison term imposed for violation of his parole. On that date, he had completely served the underlying sentence and mandatory parole term. Subsequently, on January 3, 1989, defendant was adjudged a habitual offender and sentenced to an additional four years in the penitentiary. In sum, the state filed the supplemental information before defendant had finished serving his underlying sentence, but by the time defendant was determined to be a habitual offender, he had already served the entire underlying sentence.

Defendant appealed the enhancement of his sentence. The only issue raised in the docketing statement was a due process issue concerning the fact that the state waited almost three years before filing the supplemental information. Subsequently, in his brief-in-chief, defendant raised the issue of the trial court’s lack of jurisdiction to enhance his sentence. Since the issue is jurisdictional, it may be raised for the first time on appeal. State v. Aranda, 94 N.M. 784, 617 P.2d 173 (Ct.App.1980).

DISCUSSION

Our. supreme court recently addressed a case involving similar although not identical facts. See March v. State, 109 N.M. 110, 782 P.2d 82 (1989). In March, the state did not file the habitual offender information until defendant had completed serving the underlying sentence. Accordingly, both the filing of the supplemental information and the determination that defendant was a habitual offender occurred after defendant had finished serving his sentence. Faced with those facts, the supreme court held that the procedure followed by the state violated double jeopardy principles, resulting in a lack of jurisdiction to enhance defendant’s sentence. The court’s decision was based at least in part on an analysis of the defendant’s objectively reasonable expectation regarding the finality of his sentence. Id.

In this case, we must decide how the March opinion applies to a situation in which the supplemental information was filed before defendant finished serving his sentence, but the court made no determination of his status as a habitual criminal until after he had finished serving the underlying sentence. Both parties refer to language in the March opinion to support their contentions. The state points to a sentence which concludes that defendant’s objectively reasonable expectation of finality was violated by the state’s filing of the supplemental information as to enhanced sentencing after the defendant’s service of sentence ended. See March v. State. The state argues that any expectation of finality defendant may have had was destroyed when the supplemental information was filed, because at that point defendant knew his underlying sentence was subject to enhancement. Defendant could not have reasonably expected to escape the enhancement, argues the state, by merely serving out the underlying sentence.

Defendant, on the other hand, also points to the March opinion as determinative of the issue. He directs our attention to language holding that the court has authority to correct an irregular sentence at any time prior to the point at which defendant has served his full sentence, and that a court has jurisdiction to change a sentence only before the defendant has completed serving his sentence. March v. State. Defendant argues that this jurisdictional limitation is conclusive, because once an underlying sentence has been served, there is nothing left to be enhanced by the trial court. Defendant contends it does not matter that the state filed its supplemental information before he finished serving his sentence. He relies on the March opinion for the proposition that the issue is not notice to the defendant, but the jurisdiction of the trial court to continue to act in the case. See March v. State.

Although the state’s argument is not unreasonable, we find defendant’s position more persuasive on this issue. As we have stated, the question to be answered in this case is whether defendant’s “objectively reasonable expectations of finality” regarding his sentence were violated by the procedure followed in this case. March v. State: see also United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (defendant can have no expectation of finality in his original sentence where a statute provides that the sentence is subject to appeal by the government; absent such reasonable expectation of finality, double jeopardy principles are not violated by allowing increased sentence following appeal).

The habitual offender punishment provisions authorize enhancement of an underlying sentence, and do not constitute a separate and distinct offense. See State v. James, 94 N.M. 604, 614 P.2d 16 (1980); State v. Mondragon, 107 N.M. 421, 759 P.2d 1003 (Ct.App.1988). An unenhanced sentence remains a valid sentence until it is determined that defendant is a habitual offender and that the underlying sentence is subject to enhancement. State v. Stout, 96 N.M. 29, 627 P.2d 871 (1981). It is reasonable, therefore, for a defendant to expect that if he completely serves the valid underlying sentence before the state proves he is a habitual offender, he has extinguished his criminal liability and there is no sentence left to enhance. This is so whether or not habitual offender proceedings have been filed already because the filing of such proceedings is not determinative of whether enhancement will actually occur. Only when a defendant is proven to be a habitual criminal is enhancement of the underlying sentence authorized, and the defendant’s expectations of finality in the underlying sentence consequently destroyed. Up to that point, anything could happen in the habitual proceedings — the state could decide not to pursue them, or fail to prove its case. Therefore, we believe that double jeopardy considerations preclude the enhancement of a defendant’s sentence after the defendant has completely served that underlying sentence, no matter when the habitual proceedings were initiated.

The result we reach is supported by analogous New Mexico authority. In State v. Travarez, 99 N.M. 309, 657 P.2d 636 (Ct.App.1983), this court addressed a situation in which defendant was serving a probationary term resulting from a deferred sentence. The state filed proceedings to revoke defendant’s probation while he was still serving it, but the petition to revoke the probation was not granted until after defendant had completed his full term of probation. Relying on NMSA 1978, § 31-20-9 (Repl.Pamp.1987), this court held that by the terms of that statute, defendant was deemed to have satisfied his liability for the crime upon expiration of the original two-year probation period, and that the trial court had no further jurisdiction to revoke the probation. Travarez is significant because it reflects this court’s perception of a legislative intent to deprive trial courts of jurisdiction to alter sentences once those sentences have been satisfied. See also NMSA 1978, § 31-20-8 (when suspended, as opposed to deferred, sentence has been completely served, defendant has satisfied his liability for the crime). If service of a suspended or deferred sentence completely satisfies a defendant’s liability for a crime and deprives a trial court of further jurisdiction over the defendant, even though proceedings directed at the sentence have already been filed, it would be anomalous to hold that service of a sentence of incarceration would not have the same result.

Our result is also supported by cases from this and other jurisdictions which, although they do not discuss the “reasonable expectation of finality” issue, hold that a court has no further jurisdiction over a defendant who has completely served a sentence. See, e.g., State v. Baros, 78 N.M. 623, 435 P.2d 1005 (1968) (cited heavily by the March opinion for this proposition); Reynolds v. Cochran, 138 So.2d 500 (Fla.1962) (defendant completely served the underlying sentence, and the trial court thus had no power to enhance his sentence under the Florida habitual offender statute); Davis v. Wainwright, 408 So.2d 824 (Fla.App.1982) (when defendant has already served an improperly mitigated sentence, court has no jurisdiction to reimpose original, unmitigated sentence); Commonwealth v. Dressell, 174 Pa.Super. 39, 98 A.2d 430 (1953) (where sentence has been fully executed, court’s power to subject defendant to additional punishment is gone). These cases appear to reflect the prevailing view regarding a court’s power over a defendant who has completely served a sentence.

In reaching this result we have not overlooked State v. Acuna, 103 N.M. 279, 705 P.2d 685 (Ct.App.1985). In that case, this court held double jeopardy principles were not violated when a defendant was ordered to serve the mandatory statutory parole period, even though his judgment and sentence did not mention such a requirement and he had already served the incarceration portion of the judgment. The basis for the decision was that parole periods following incarceration are mandatory by statute and are automatically included in any sentence. In addition, the defendant had signed a parole agreement. This court decided that under the circumstances, defendant had not persuaded us he had a reasonable expectation that he would not be required to serve the mandatory period of parole. Habitual offender enhancements, on the other hand, despite the mandatory tone of the statute, are not automatically included in any sentence imposed on a defendant. Prosecutors have discretion to bring habitual proceedings or forego them. See March v. State. This discretion, and the fact that, even if habitual proceedings are initiated, they may not be successfully concluded, distinguish defendant’s reasonable expectations of finality in this case from the expectations held by the defendant in Acuna.

We also recognize that, as the dissent points out, the result in this case is inconsistent with Lott v. Cox, 76 N.M. 76, 412 P.2d 249 (1966). Unlike the dissent, however, we do not believe we are bound by Lott. Although the supreme court did not explicitly overrule Lott in the March opinion, the relevant language in March, to the effect that a court retains jurisdiction to enhance a sentence only until defendant completely serves his sentence, impliedly overrules the Lott holding. Therefore, Lott is no longer controlling authority on this issue. We also note that most, if not all, of the cases relied on in the Lott opinion are no longer valid, having been superseded by other cases or by amendments to the applicable statutes. See, e.g., State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974) (habitual statute substantially similar to New Mexico’s requires completion of enhancement proceeding before defendant finishes serving sentence to be enhanced); see also State v. Howiler, 26 Ohio App.3d 181, 499 N.E.2d 10 (1985) (discussing Ohio’s statute, as amended). This lends additional support for our view that Lott has been superseded by later pronouncements in this area of law.

Based on the foregoing, we hold defendant’s reasonable expectations of finality, and therefore his right to be free from double jeopardy, were violated when the trial court determined he was a habitual offender after he had completed serving the underlying sentence. We reverse and remand with instructions to discharge defendant.

IT IS SO ORDERED.

CHAVEZ, J., concurs.