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State v. Gaede12/7/1999
{1} Defendant appeals his conviction as a fourth-time offender of driving while under the influence of intoxicating liquor (DWI). The sole question raised on appeal is whether the district court erred in determining that Defendant was subject to being sentenced as a fourth-time DWI offender instead of a third-time offender. For the reasons discussed herein, we affirm the district court's judgment and sentence.
FACTS AND PROCEDURAL POSTURE
{2} Defendant pled guilty to DWI and careless driving on February 3, 1984, in the Alamogordo municipal court. The judgment and sentence, inter alia, ordered that Defendant pay a $100 fine and attend DWI school. In 1994 Defendant was again arrested and charged with DWI and other motor vehicle violations in the Otero County magistrate court. However, on October 6, 1994, the State and Defendant entered a plea and disposition agreement whereby Defendant entered a plea of nolo contendere to DWI first offense. The 1994 plea and disposition agreement entered after consultation with defense counsel, recited in applicable part that Defendant's plea was subject to:
the following understandings, terms and conditions:
1. That the following disposition will be made of the charges: Sentencing in the discretion of the Court. However State will not oppose mandatory min[imum] sentence of 48 hours. State will not oppose deferred fines on any or all possible fines.
2. That the following charges will be dismissed, or if not yet filed, shall not be brought against the efendant: No Registration; Improper Use of [License] Plate.
{3} The following year, Defendant was once more arrested and charged in the Lincoln County magistrate court with DWI, together with the additional offenses of careless driving and driving while his license was revoked. On May 31, 1995, the State and Defendant entered into a plea and disposition agreement whereby Defendant, who was charged with his third DWI offense, entered a plea of nolo contendere to aggravated DWI second offense and driving on a suspended or revoked license. The 1995 judgment and sentence recited that the court found Defendant guilty of "AGGRAVATED DWI 2ND DRIVING WHILE LICENSE REVOKED." In 1998 Defendant was arrested for DWI a fourth time. On October 21, 1998, Defendant pled no contest to the charge of DWI, contrary to NMSA 1978, § 66-8-102 (1997). Defendant's plea agreement to this charge did not contain any limitation concerning the sentence which could be imposed and, at the sentencing hearing, the State presented evidence that Defendant had three prior DWI convictions.
{4} Defendant challenges the efficacy of his first DWI conviction in 1984 and thus argues that the district court erred in finding that he had three prior DWI convictions. Defendant testified that the municipal judge for his 1984 plea of guilty to DWI told him that the DWI conviction would be removed from his record upon his successful completion of DWI school, his payment of a fine, and his maintaining a clear record during his probationary period. Defendant testified that he complied with these conditions and believed his first DWI conviction had been removed from his record.
{5} The district court in the present case concluded that the State's exhibits established that Defendant entered a plea of guilty to DWI in 1984, and that the 1984 incident was, in fact, the first of four DWI convictions involving Defendant. Based upon this determination, the district court sentenced Defendant as a fourth-time DWI offender. Defendant has filed a timely appeal from that judgment and sentence.
DISCUSSION
{6} Defendant does not contest the fact that h
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