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State v. Wiberg3/17/1988
ld not be convicted of DWI under the facts of this case because DWI was a lesser included offense of vehicular homicide committed by DWI. Defendant asserts that a conviction for the higher offense bars a simultaneous conviction, under double jeopardy, of the lesser. Accordingly, he argues that his DWI conviction should be stricken and the six-month sentence vacated. We disagree.
Defendant's argument is based on an erroneous belief that the lesser included offense concept of double jeopardy precludes a simultaneous conviction for the lesser included offense. A conviction or acquittal of a lesser offense necessarily included in a greater offense bars a subsequent prosecution for the greater offense. State v. Sandoval, 90 N.M. 260, 561 P.2d 1353 (Ct. App.1977). Thus, the lesser included offense concept protects against retrial. See id.
Merger is an aspect of double jeopardy; it is concerned with whether more than one offense has occurred, and is applied to prevent a person from being punished twice for the same offense. State v. McAfee, 78 N.M. 108, 428 P.2d 647 (1967); State v. Maes, 100 N.M. 78, 665 P.2d 1169 (Ct. App.1983). The doctrine of merger is applicable
here. Under the concept of merger, defendant can properly be convicted of both the lesser and greater offenses but can only be punished for one of those offenses. See State v. Quintana, 69 N.M. 51, 364 P.2d 120 (1961); State v. Maes. The sentence to be vacated is that imposed for the lesser offense because it is that offense which merges with the greater offense. State v. Jacobs, 102 N.M. 801, 701 P.2d 400 (Ct. App.1985). Accordingly, defendant's DWI offense merges with his vehicular homicide offense, and defendant's six month sentence for the DWI conviction must be vacated. See id.
ISSUE 4 (Merger of reckless driving and vehicular homicide.)
Following his convictions, defendant was sentenced to imprisonment for three years on the vehicular homicide conviction, three years on the great bodily harm conviction, six months on the driving while under the influence conviction, and ninety days on the reckless driving conviction, all sentences to run consecutively. The trial court suspended three years and nine months of the total sentence, ordering probation for that period of suspension.
Defendant argues that the acts constituting reckless driving -- driving carelessly and heedlessly in willful disregard of the rights or safety of others, without due caution, and at a speed or in a manner so as to endanger or be likely to endanger any person according to Section 66-8-113(A), are necessarily the same acts to be proven for the conviction of vehicular homicide by driving under the influence of alcohol. Specifically, he argues, recklessness was the act of driving under the influence. Defendant argues that other evidence of his driving under the influence is insufficient to support the conviction of vehicular homicide. See State v. Sisneros, 42 N.M. 500, 82 P.2d 274 (1938). Accordingly, defendant argues that the sentence for reckless driving should be vacated.
The double jeopardy concept of "merger of offenses" requires that one offense necessarily involve the other. State v. Jacobs. A necessarily included offense does not have any element not included in the greater offense so that it is impossible to commit the greater offense without necessarily
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