 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Wildgrube6/23/2003
rd People v. Stork, 713 N.E.2d 187, 191 (Ill. App. Ct. 1999); State v. Chapman, 685 A.2d 423, 425 (Me. 1996); State v. Wyrick, 62 S.W.3d 751, 793-94 (Tenn. Crim. App. 2001); State v. Sell, 43 P.3d 1246, 1250 (Wash. Ct. App. 2002). The statute under which Defendant was sentenced specifically refers to the EMDA. See § 31-18-15(F) ("When the court imposes a sentence of imprisonment for a felony offense, the court shall indicate whether or not the offense is a serious violent offense, as defined in Section 33-2-34 NMSA 1978.").
To the extent that Defendant's claim may be seen as a challenge to the constitutionality of the statute, Morales addressed the issue and concluded that, because the EMDA involved sentencing factors, it complied with Apprendi v. New Jersey, 530 U.S. 466 (2000). Morales, 2002-NMCA-016, 1; cf. State v. Wilson, 2001-NMCA-032, 29, 130 N.M. 319, 24 P.3d 351, cert. quashed, No. 26,923 (2001).
Agreement with District Attorney
As we understand Defendant's brief in chief, he contends that the State is bound by an agreement made after the trial by the district attorney of the Eighth Judicial District and Defendant. Defendant and the district attorney reached an agreement as to sentencing. They also agreed that if the trial court did not accept the recommendation, the district attorney would stipulate to a mistrial and agree to a new trial for Defendant. Apparently, as part of any motion for a new trial, the agreement stated that the district attorney would "confess error." The nature of that error is not part of the record.
The State responds that the district attorney did honor the agreement at the sentencing hearing, noting that the trial court was not bound by an understanding as to sentencing between Defendant and the district attorney. Cf. State v. Mares, 119 N.M. 48, 51, 888 P.2d 930, 933 (1994) (recognizing that a trial court has broad discretion to accept or reject a plea agreement). With regard to the rest of the agreement, there is nothing in the record to indicate that Defendant ever filed motions for a mistrial or for a new trial.
In response to Defendant's claim that the agreement is still somehow binding to confess error, the State points out that on appeal the attorney general, not the district attorney, represents the State. See NMSA 1978, § 8-5-2(A) (1975) (stating that the attorney general shall "prosecute and defend all causes in the supreme court and court of appeals in which the state is a party or interested"). Further, as the State points out, even were the State to "confess error," this Court is not bound by a concession of error on appeal made by the attorney general. See State v. Martinez, 1999-NMSC-018 26, 127 N.M. 207, 979 P.2d 718 (" ppellate courts in New Mexico are not bound by the Attorney General's concession of an issue in a criminal appeal."). As Defendant himself acknowledges, this Court is not bound by any agreement below.
Conclusion
We affirm Defendant's conviction and sentence for vehicular homicide.
IT IS SO ORDERED.
JAMES J. WECHSLER, Chief Judge
WE CONCUR:
JONATHAN B. SUTIN, Judge
IRA ROBINSON, Judge
|