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State v. Gonzales9/24/1997
MINZNER, Justice.
{1} Defendant Juan Floyd Gonzales appeals his convictions for felony DWI under NMSA 1978, § 66-8-102(G) (1994, prior to 1997 amendment). He contends the court erred in relying on his prior DWI convictions because he was not represented by counsel when he was convicted. Further, he contends that the court erred in enhancing his sentence, because the Legislature did not intend that NMSA 1978, § 31-18-17 (1993) (providing for alteration of basic sentence of habitual offender), apply to felony DWI. We affirm Gonzales' conviction for felony DWI. We reverse his sentence and remand for resentencing.
I.
{2} Following a jury trial, Gonzales was convicted of DWI contrary to Section 66-8-102(G), careless driving contrary to NMSA 1978, § 66-8-114 (1969), and driving on a suspended or revoked license contrary to NMSA 1978, § 66-5-39 (1994). The State filed an amended supplemental criminal information alleging four prior felony convictions.
{3} At the hearing on the supplemental information, Gonzales admitted the prior felony convictions contained in the information. Gonzales also admitted three prior DWI convictions. The State introduced documentary evidence of three prior convictions for DWI, which evidence included waivers of counsel signed by Gonzales and by a magistrate Judge. Gonzales argued that the State's proof was insufficient because his waivers of counsel were not knowing, intelligent, or voluntary, and thus his convictions were void because he lacked counsel.
{4} The documentary evidence showed that Gonzales was convicted of DWI in August 1980. He was not represented by counsel. The record indicates he was then on probation in connection with another offense. He testified that the magistrate court Judge told him that if he fought the citation, the Judge would revoke his probation and send him to jail for five years. Gonzales pled guilty and was sentenced to thirty months. The sentence was suspended on condition that he pay a fine and spend nights in the Ruidoso Village jail.
{5} The documentary evidence showed Gonzales was convicted of DWI again in January 1987. He was not represented by counsel. As indicated by the record, he was on probation at this time also. Gonzales pled guilty and was sentenced to 364 days; he served sixty-one days.
{6} The documentary evidence showed Gonzales was convicted of DWI again in March 1992. He was not represented by counsel. He testified that the magistrate Judge told him to plead guilty and that, if he did, two friends of his who had been arrested with him would be released. Gonzales was sentenced to 364 days. There was also evidence of a fourth DWI conviction in 1977, in the form of Gonzales' own admissions. He testified that he had agreed to the Disposition of that case without an attorney because he did not want to go to jail.
{7} The prosecutor offered to call as a witness the magistrate court Judge who had signed the waivers of counsel. The district court ruled that the State had carried its burden of proving three prior DWI convictions. The court also ruled that the evidence showed Gonzales had waived his right to counsel and that he had done so knowingly, intelligently, and voluntarily. The court said the State was not required to produce the Judge. The court sentenced Gonzales to ten-and-one-half years imprisonment.
{8} Gonzales appealed. The Court of Appeals affirmed his conviction summarily. We granted certiorari. State v. Gonzales, NMCA No. 16,564, slip op. (January 24, 1996), cert. granted, 121 N.M. 499, 914 P.2d 636 (1996).
II.
{9} Gonzales contends that his constitutional rights to due process were v
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