State v. Mosley

445 P.2d 391 (1968)

79 N.M. 514

STATE of New Mexico, Plaintiff-Appellee, v. Kenneth D. MOSLEY, Defendant-Appellant.

No. 224.

Court of Appeals of New Mexico.

September 13, 1968.

B.R. Baldock, Sanders & Bruin, Roswell, for defendant-appellant.

Boston E. Witt, Atty. Gen., David R. Sierra, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WOOD, Judge.

Defendant's motion for post-conviction relief under § 21-1-1(93), N.M.S.A. 1953, was denied without a hearing. His appeal raises three issues.

1. Defendant was charged by a criminal information. He claims that under N.M.Const. Art. XX, § 20, he was entitled to be indicted by a grand jury. The claim is without merit. Under N.M.Const. Art. II, § 14, a defendant may be charged either by grand jury action or by a criminal information. Flores v. State, (Ct. App.), 79 N.M. 420, 444 P.2d 605, decided August 9, 1968, and cases therein cited.

2. After being arrested and jailed in New Mexico defendant contends that he was released to a Texas sheriff, confined in a Texas jail for four days and then illegally returned to New Mexico. We assume, but do not decide, that this claim is true. Defendant pled guilty in the trial court; he does not claim that his plea was involuntary. His claim of "illegal" return to New Mexico, be it a claim of illegal arrest or illegal extradition, was waived by his plea. State v. Losolla, 79 N.M. 296, 442 P.2d 786 (1968); State v. Williams, 78 N.M. 211, 430 P.2d 105 (1967); State v. Blankenship, 79 N.M. 178, 441 P.2d 218 (Ct.App. 1968).

3. Defendant claims he was returned to New Mexico from Texas without extradition proceedings and without a waiver of extradition and that in being so returned he suffered cruel and unjust treatment. This claim is not a claim of cruelty in his punishment and does not raise an issue under U.S.Const., Amend. VIII and N.M.Const. Art. II, § 13. State v. Peters, 78 N.M. 224, 430 P.2d 382 (1967); State v Blankenship, supra.

The order denying relief is affirmed.

It is so ordered.

SPIESS, C.J., and ARMIJO, J., concur.