88 N.M. 333 - State v. Tanton

How this case has been cited

Cited by 123 later decisions — most recently June 2014 · most notably Swafford v. State (1991), State v. Manus (1979)

2 district · 121 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

SOSA, Justice (specially concurring).

¶1I concur generally with the result of the majority opinion. However, as the issue was presented but not resolved by the majority, I would like to clarify my position with respect to the effect of a conviction of a lesser offense necessarily included in a greater offense. The Court of Appeals in State v. Medina, 87 N.M. 394, 534 P.2d 486 (1975), held that conviction barred the greater offense, citing Ex. Parte Williams, 58 N.M. 37, 265 P.2d 359 (1954) and State v. Goodson, 54 N.M. 184, 217 P.2d 262 (1950). Williams supra was not on point and Goodson supra gave varied reasons for its holding. I would hold that conviction bars prosecution of a greater offense, subject to one exception: If the court does not have jurisdiction to try the crime, double jeopardy cannot attach. Double jeopardy requires that a court have sufficient jurisdiction to try the charge. Goodson at 187, 217 P.2d 262, quoting State v. Rose, 89 Ohio St. 383, 106 N.E. 50, 51 (1914); Crowley v. State, 94 Ohio St. 88, 113 N.E. 658 (1916).

¶2In the instant case defendant was convicted of driving while intoxicated (DWI) in magistrate court. In district court he was charged in the alternative with vehicular homicide while recklessly driving and vehicular homicide while DWI. A narrow interpretation of the majorities’ opinion would preclude the prosecution of defendant for vehicular homicide while DWI since DWI is a necessarily included offense of vehicular homicide while DWI, but it would not preclude the prosecution of the other charge vehicular homicide while driving recklessly. However, since the magistrate court had no jurisdiction to try the charge of vehicular homicide while DWI or recklessly driving (N.M.Const. art. VI, § 13 and § 26; § 36-3-4 N.M.S.A. 1953 (Supp.1973)), double jeopardy should not bar the vehicular homicide by DWI charge. This policy would decrease most problems arising from lack of communication among city attorneys, assistant district attorneys, and the district attorney and will preclude defendants from trying to take advantage of the divided nature of the judicial and prosecutorial branches.