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State v. House3/28/1996
PICKARD, Judge.
{1} The trial court denied Defendant's request for bail pending appeal of his convictions for driving while intoxicated (DWI) (second offense), reckless driving, great bodily injury by vehicle (alternatively by reckless driving or DWI), and four counts of vehicular homicide (alternatively by reckless driving or DWI). Defendant has filed a motion in this Court to review conditions of release pursuant to SCRA 1986, 12-205(B) (Repl. 1992). This case presents us with an opportunity to determine the constitutionality of NMSA 1978, Section 31-11-1(C) (Cum. Supp. 1995), the appeal-bond statute, and to decide how it should be interpreted.
The Appeal-Bond Statute and the Appeal-Bond Rule
{2} Section 31-11-1(C) provides as follows:
If a defendant is convicted of a noncapital offense other than a violent offense [as defined in subsection D of this statute] and is sentenced to a term of imprisonment not suspended in whole, he shall not be entitled to release pending appeal unless the court finds:
(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released; and
(2) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.
{3} SCRA 1986, 5-402(C) (Repl. 1992) of the District Court Rules of Criminal Procedure states in pertinent part:
Release after sentencing. After imposition of a judgment and sentence, the court, upon motion of the defendant, may establish conditions of release pending appeal or a motion for new trial. The court may utilize the criteria listed in Paragraph B of Rule 5-401, and may also consider the fact of defendant's conviction and the length of sentence imposed. The defendant shall be detained unless the district court after a hearing determines that the defendant is not likely to flee and does not pose a danger to the safety of any other person or the community if released.
{4} District Court Judge Blackmer found by clear and convincing evidence that Defendant is not likely to flee or pose a danger to the safety (of any other person or the community if he is released pending appeal. Judge Blackmer also found that Defendant's appeal is not for the purpose of delay. These findings satisfy all but one element of Section 31-11-1(C) and SCRA 5-402(C)--the requirement of Section 31-11-1(C)(2) that the trial court find that the appeal raises a substantial question of law or fact likely to result in reversal or an order for a new trial. Judge Blackmer's finding against Defendant on this component was the sole reason for his decision to deny bail pending appeal.
{5} Defendant contends that Section 31-11-1(C)(2) is not applicable because it unconstitutionally intrudes upon the judicial branch's power to prescribe rules of judicial procedure. See generally N.M. Const. art. III, § 1 (separation of powers of the government); ("Certainly statutes purporting to regulate practice and procedure in the courts cannot be made binding, for the constitutional power is vested exclusively in this court."). Defendant argues that SCRA 5-402(C) alone is controlling and that he must be released pending appeal because Judge Blackmer found that he met the requirements of the rule promulgated by our Supreme Court. We analyze this issue mindful of Defendant's burden to demonstrate the invalidity of the statute. See ), cert. quashed, 115 N.M. 796, 858 P.2d 1275 (1993).
{6} In 1988, New Mexico voters removed entirely any constitutional right to post-conviction bail through a constitutio
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