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State v. Edmondson5/28/1991
HARTZ, Judge.
Our opinion in this criminal appeal has two parts. Because the issues treated in part II are of no precedential value and are matters of concern to the parties only, part II will not be published.
I.
Defendant was convicted on two counts of issuance of worthless checks. He contends that the trial court improperly enhanced his sentences as a habitual offender, see NMSA 1978, 31-18-17 (Repl. Pamp. 1990), because the basis for the enhancement was a probated Texas conviction that had been set aside by a Texas court. He argues that the New Mexico habitual-offender statute does not permit the use of such a conviction and that in any case such use is prohibited by Article IV, Section 1 of the United States Constitution, the Full Faith and Credit Clause, because Texas law does not permit such convictions to be considered for habitual-offender sentencing. We affirm.
The question before us is whether defendant's conviction by a Texas court constitutes a "prior felony conviction" for purposes of the New Mexico habitual-offender statute. That statute defines "prior felony conviction" as:
1. conviction for a prior felony committed within New Mexico whether within the Criminal Code or not; or
2. any prior felony for which the person was convicted other than an offense triable by court-martial if:
(a) the conviction was rendered by a court of another state, the United States, a territory of the United States or the commonwealth of Puerto Rico;
(b) the offense was punishable, at the time of conviction, by death or a maximum
term of imprisonment of more than one year; or
(c) the offense would have been classified as a felony in this state at the time of conviction.
NMSA 1978, 31-18-17(A) (Repl. Pamp. 1990). There is no dispute that a valid judgment of conviction for a felony punishable by imprisonment of more than one year was entered against defendant by a Texas court. That is all that is necessary under our statute.
The complication in this case is that defendant was placed on probation after his conviction. Upon successful completion of his probation, the indictment against defendant was set aside by a Texas court. The conviction could not be considered under the Texas habitual-offender statute. See Ex parte Murchison, 560 S.W.2d 654 (Tex. Crim. App. 1978) (en banc). It does not follow, however, that New Mexico court cannot use the conviction for purposes of our habitual-offender statute.
Defendant relies upon . That case is distinguishable. There had never been a conviction of Burk. Under Texas law, Tex. Code Crim. Proc. Ann. art. 42.12, 3d(a) (Vernon 1979), he had been placed on probation without any adjudication of guilt being entered. We noted, "Texas courts hold that because no adjudication of guilt is entered, the trial court's action in deferring proceedings is not deemed a 'conviction.'" . In contrast, defendant here was placed on probation after a judgment of conviction. See Tex. Code Crim. Proc. Ann. art. 42-12, ยงยง 3, 3a.
The reason given by the Texas courts for forbidding the use of a conviction such as defendant's for habitual-offender sentencing is that such a conviction does not become "final" unless and until the probation is revoked. See Ex parte Murchison. That use of the word "final," however, is idiosyncratic. In some respects the conviction is treated as final. For example, the defendant may appeal the conviction at the time he is placed on probation, Tex. Code Crim. Proc. Ann. art. 42.12 8(
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