2021 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 18 - Criminal Sentencing
Section 31-18-20 - Habitual offenders; proceedings for prosecution.

A. The court wherein a person has been convicted of a noncapital felony and where that person has been charged as a habitual offender under the provisions of Section 31-18-19 NMSA 1978 shall bring the defendant before it, whether he is confined in prison or not. The court shall inform him of:

(1) the allegations of the information; and

(2) his right to be tried as to the truth thereof according to law.

B. The court shall require the defendant to say whether or not he is the same person as charged in the information. If the defendant denies being the same person or refuses to answer or remains silent, his plea or the fact of his silence shall be entered in the record and the court shall then conduct a hearing to determine if the offender is the same person.

C. If the court finds that the defendant is the same person and that he was in fact convicted of the previous crime or crimes as charged, the court shall sentence him to the punishment as prescribed in Section 31-18-17 NMSA 1978.

History: 1953 Comp., § 40A-29-33, enacted by Laws 1977, ch. 216, § 9; 1983, ch. 127, § 2.

Cross references. — For general consideration of the habitual offender statute, see notes to 31-18-17 NMSA 1978.

I. GENERAL CONSIDERATION.

Purpose of former law. — Former section was enacted to give a person convicted of a felony in this state charged with being an habitual criminal the right to a separate trial before a jury and to require the state to prove in such separate proceedings the identity of the accused as the person alleged to have been convicted of the former crimes. Lott v. Cox, 1965-NMSC-037, 75 N.M. 102, 401 P.2d 93.

Habitual offender statute creates no new offense, but merely provides a proceeding whereby one previously convicted of a felony or felonies may be given an enhanced sentence upon subsequent conviction in this state for another felony. State v. Bonner, 1970-NMCA-047, 81 N.M. 471, 468 P.2d 636.

Habitual offender statute provides for an enhanced sentence. — The habitual criminal status is not a conviction of a distinct crime. Indeed, a conviction on the merits has occurred and the crime convicted of is unrelated to the habitual criminal provisions, which produce not a judgment of guilt of the offense, but rather an enhanced sentence. Linam v. Griffin, 685 F.2d 369 (10th Cir. 1982), cert. denied, 459 U.S. 1211, 103 S. Ct. 1207, 75 L. Ed. 2d 447 (1983).

Habitual criminal proceeding not constitutional adjudication. — The habitual criminal proceeding in New Mexico is not the kind of adjudication that is referred to in the fifth amendment double jeopardy clause. Linam v. Griffin, 685 F.2d 369 (10th Cir. 1982), cert. denied, 459 U.S. 1211, 103 S. Ct. 1207, 75 L. Ed. 2d 447 (1983).

New Mexico habitual criminal proceeding is a trial on the issue of punishment and double jeopardy bars a second try if the prosecution fails. Linam v. Griffin, 685 F.2d 369 (10th Cir. 1982), cert. denied, 459 U.S. 1211, 103 S. Ct. 1207, 75 L. Ed. 2d 447 (1983) (concurring opinion).

Proceeding not trial for purposes of determining competency. — The habitual offender proceeding is not a trial in the constitutional sense for purposes of making a determination as to competency and Rule 35(b) N.M.R. Crim. P. (now Rule 5-602B NMRA) does not apply to such proceedings. State v. Nelson, 1981-NMSC-100, 96 N.M. 654, 634 P.2d 676.

Where record in habitual offender proceeding is silent as to invalidity, there is no basis for holding the prior convictions invalid. State v. O'Neil, 1978-NMCA-056, 91 N.M. 727, 580 P.2d 495, cert. denied, 91 N.M. 491, 576 P.2d 297.

No jeopardy attaches in habitual proceeding. — A habitual proceeding involves only sentencing, not trial of an offense, therefore jeopardy does not attach. State v. Rogers, 1979-NMSC-085, 93 N.M. 519, 602 P.2d 616.

II. PROCEDURAL MATTERS.

Burden of persuasion. — The validity of prior convictions is presumed until a defendant produces evidence reasonably tending to establish their invalidity. If the constitutional invalidity of prior convictions is not adequately shown, the burden of persuasion does not shift, and the State has no obligation to come forward with evidence. State v. Duarte, 1996-NMCA-038, 121 N.M. 553, 915 P.2d 309, cert. denied, 121 N.M. 444, 913 P.2d 251.

Strict compliance required. — Strict compliance with the procedures set forth in this section is required. State v. Sanchez, 1972-NMCA-113, 84 N.M. 163, 500 P.2d 448.

Burden of proof. — Federal law requires that the state prove a prior conviction by a preponderance of evidence. State v. Smith, 2000-NMSC-005, 128 N.M. 588, 995 P.2d 1030.

Remand following appeal allowed, to obtain evidence on date of prior crime. — The double jeopardy clause of the fifth amendment does not bar a remand following an appeal, directed at obtaining evidence as to the dates of the prior commission of crimes in order to satisfy the interpretation of the New Mexico habitual criminal statute that there be proof that each felony was committed after a conviction for the preceding felony. Linam v. Griffin, 685 F.2d 369 (10th Cir. 1982), cert. denied, 459 U.S. 1211, 103 S. Ct. 1207, 75 L. Ed. 2d 447 (1983).

Judge to determine whether offense follows prior felony conviction. — Whether the commission of an offense was after a conviction for an earlier felony, thus qualifying for an enhanced penalty, may be determined by the trial judge. Hernandez v. State, 1981-NMSC-091, 96 N.M. 585, 633 P.2d 693.

Jury issues limited to identity and prior conviction. — The only questions that must be submitted to a jury upon a defendant's demand under the habitual offender statutes are those of identity and whether the defendant was previously convicted of the specific crime charged in the enhancement proceedings. Hernandez v. State, 1981-NMSC-091, 96 N.M. 585, 633 P.2d 693.

Unless defendant raises validity of prior conviction as a defense, there are two issues to be determined in an habitual offender proceeding: (1) whether there was a prior felony conviction, and (2) whether the defendant is the same person who was convicted of the prior felony. State v. Hernandez, 1981-NMCA-036, 96 N.M. 604, 633 P.2d 712, rev'd on other grounds, 1981-NMSC-091, 96 N.M. 585, 633 P.2d 693.

There is no need of presentment by grand jury where the question was simply whether the party had been convicted of an offense, as an indictment is confined to the question whether an offense has been committed. State v. Gonzales, 1972-NMCA-130, 84 N.M. 275, 502 P.2d 300, cert. denied, 84 N.M. 271, 502 P.2d 296.

Allegation of former conviction in indictment not required by constitution. — Although the state may properly provide for the allegation of the former conviction in the indictment, for a finding by the jury on this point in connection with its verdict as to guilt and thereupon for the imposition of the full sentence prescribed, there is no constitutional mandate which requires the state to adopt this course even where the former conviction is known. State v. Gonzales, 1972-NMCA-130, 84 N.M. 275, 502 P.2d 300, cert. denied, 84 N.M. 271, 502 P.2d 296.

Proof of defendant's identity. — Where a supplemental information was filed for the purpose of sentencing defendant as an habitual offender, the state was not required to affirmatively prove not only that defendant was the person previously convicted of the crimes listed in the information but also that he was the same person convicted in the underlying case in which the sentencing proceedings were taking place. State v. Salas, 1999-NMCA-099, 127 N.M. 686, 986 P.2d 482, cert. denied, 128 N.M. 149, 990 P.2d 823.

Separate proceeding permissible where only issue is identity. — The information charging defendant as an habitual offender was filed as a separate cause, and such a separate proceeding is permissible where the only issue is the identity of the accused as the person previously convicted of crimes within the meaning of the habitual offender statute. State v. Tipton, 1966-NMSC-202, 77 N.M. 1, 419 P.2d 216.

Information dismissed where proceedings not commenced within six months of filing. — Where more than six months had passed since the filing of an information charging defendant under former 31-18-5 NMSA 1978 et seq. with being an habitual offender, the supreme court ordered that it be dismissed with prejudice in accordance with Rule 37(d), N.M.R. Crim. P. (now Rule 5-604D), to the extent that the state was precluded only from filing another such information grounded upon all four of those felonies which were the basis for the information dismissed. State v. Lopez, 1976-NMSC-012, 89 N.M. 82, 547 P.2d 565(decided under former law) (now Rule 5-604 NMRA).

Right to counsel. — The charge of being a habitual criminal is too serious, and the potential prejudice resulting from the absence of counsel having the legal skill to determine whether there had, in fact, been a previous conviction, is too great, to allow a conviction to stand when it appears a defendant has entered a plea without the assistance of counsel to which he is entitled, or without having effectively waived the right. Johnson v. Cox, 1963-NMSC-058, 72 N.M. 55, 380 P.2d 199, cert. denied, 375 U.S. 855, 84 S. Ct. 117, 11 L. Ed. 2d 82 (1963).

Duty of trial court to inform defendant of rights. — Under this section the trial court must inform the defendant of the allegations contained in the information and of his right to be tried as to the truth thereof according to law. Therefore, where there was no showing that the judge or an officer of the court so informed the defendant, defendant's confession of being convicted of another crime was disallowed, and the judgment was reversed. State v. Bonner, 1974-NMCA-043, 86 N.M. 314, 523 P.2d 812.

Trial court not specifically required to inform defendant of enhanced penalty. — This section does not specifically require the trial court to advise a defendant of the enhanced penalty. State v. Madrid, 1972-NMSC-016, 83 N.M. 603, 495 P.2d 383.

Trial court's failure to caution not considered on appeal. — Where defendant claimed that the trial court's procedure prior to his admitting the charge of being an habitual offender was defective in that his admission could not legally be accepted because he was not duly cautioned as to his rights, but did not claim that his admission was involuntary, the issue of the trial court's failure to caution defendant would not be heard on appeal, since it was not raised in the trial court. State v. Jordan, 1975-NMCA-102, 88 N.M. 230, 539 P.2d 620.

Right to trial by jury may be waived. — Right to be tried by a jury is a requirement which may be waived either expressly or by implication. State v. Knight, 1965-NMSC-058, 75 N.M. 197, 402 P.2d 380.

Circumstances showing waiver of jury trial. — Where appellant was represented by an attorney throughout the proceedings, had ample notice that habitual criminal charges were involved, and, in reply to questions by the court before the guilty plea was accepted to the forgery charges and prior to any examination by the court concerning the habitual criminal information, both appellant and his attorney assured the court that they had previously discussed the habitual criminal information and that they had also thoroughly discussed it with the district attorney, appellant's right to be tried by a jury was waived. State v. Knight, 1965-NMSC-058, 75 N.M. 197, 402 P.2d 380.

Law requires admission or determination of identity. — Before defendant can be prosecuted under the habitual offender statute, the law requires an admission or a determination of identity. State v. Sanchez, 1972-NMCA-113, 84 N.M. 163, 500 P.2d 448.

An instruction which reads "aka" deprives defendant of jury determination. — An instruction which read "aka" (also known as) deprived defendant in a habitual offender prosecution of the right to have the jury determine the issue of identity. State v. Griffin, 1980-NMCA-015, 94 N.M. 5, 606 P.2d 543.

Use of aliases in indictments or jury instructions is proper where there is evidence of the alias and/or the surrounding circumstances reveal no resulting prejudice to the defendant. State v. Muniz, 1981-NMSC-014, 95 N.M. 415, 622 P.2d 1035.

Jury's function of determining identity issue not preempted by instructions. — Instructions which simply told the jury to determine whether defendant was the same person that was convicted of several offenses that were charged in the indictments under other names did not preempt the jury's function of determining the issue of identity in a prosecution under the habitual offender statute. State v. Muniz, 1981-NMSC-014, 95 N.M. 415, 622 P.2d 1035.

Judicial determination of identity may not properly be made prior to conviction in the felony case. Lott v. Cox, 1965-NMSC-037, 75 N.M. 102, 401 P.2d 93.

Waiver of jury trial does not amount to admission of identity. — Even though defendant affirmatively waived a jury trial on the question of identity, this did not amount to an admission that he was the same person charged in the supplemental information. State v. Sanchez, 1972-NMCA-113, 84 N.M. 163, 500 P.2d 448.

Statute does not provide jury trial where such trial was waived in original proceedings. — Where defendant seeks to retry, in an habitual offender proceeding, the question of voluntariness of guilty pleas he made a decade ago, and, although the validity of the prior convictions upon which the habitual offender charge is based is subject to attack, the purpose of the statute is not to provide a defendant with a trial by jury on previous convictions where the defendant waived such a trial in the original criminal proceedings. State v. Martinez, 1978-NMSC-083, 92 N.M. 256, 586 P.2d 1085.

Sequence of crimes and convictions is element of the state's case and not a defense to be raised and established by the defendant; the state's failure to establish the sequence of the crimes is therefor a failure of proof. State v. Valenzuela, 1979-NMCA-072, 94 N.M. 285, 609 P.2d 1241, aff'd, 1980-NMSC-047, 94 N.M. 340, 610 P.2d 744, overruled in part by Hernandez v. State, 1981-NMSC-091, 96 N.M. 585, 633 P.2d 693.

Determining when subsequent act occurred relevant. — When a question of the sequence of crimes and convictions is raised, the only relevant determination is the factual question of when the subsequent act occurs. Thus, "sequence" depends upon evidence actually presented to the jury. State v. Valenzuela, 1979-NMCA-072, 94 N.M. 285, 609 P.2d 1241, aff'd, 1980-NMSC-047, 94 N.M. 340, 610 P.2d 744, overruled in part by Hernandez v. State, 1981-NMSC-091, 96 N.M. 585, 633 P.2d 693.

State must present some evidence to carry burden of validly obtained pleas. — Although it is settled law that the absence of the record of the guilty plea proceedings does not establish the invalidity of the pleas, the state must present some evidence in order to carry its burden of persuasion that the pleas were validly obtained. State v. Garcia, 1980-NMSC-132, 95 N.M. 246, 620 P.2d 1271.

Where state's exhibits establish prima facie case establishing valid guilty plea, the defendant must then produce evidence that supports the asserted invalidity of these pleas. State v. Garcia, 1980-NMSC-132, 95 N.M. 246, 620 P.2d 1271.

Where defendant claims a guilty plea was invalid, the state makes a prima facie case establishing a valid guilty plea upon proof that defendant has been convicted of a crime. State v. Garcia, 1980-NMSC-132, 95 N.M. 246, 620 P.2d 1271.

Issue of whether prior convictions are constitutionally valid is defense to the habitual offender charge. Defendant was entitled to present evidence in support of this defense. Whether the defense is a matter to be decided by the court or the jury will depend on the issue raised by the defense. State v. Dawson, 1977-NMCA-102, 91 N.M. 70, 570 P.2d 608.

Collateral attack on validity of prior convictions permissible. — Where defendant's appeal attacks the validity of two prior convictions on grounds: (1) that he did not have a preliminary examination in connection with the two prior convictions, and (2) that the first conviction was for a misdemeanor rather than a felony, such a collateral attack is permissible. State v. Darrah, 1966-NMSC-171, 76 N.M. 671, 417 P.2d 805.

State not required to allege and prove validity of prior conviction. — This section does not require the state to prove the validity of the prior convictions. The state makes a prima facie case upon proof that defendant has been convicted of a prior felony. State v. Dawson, 1977-NMCA-102, 91 N.M. 70, 570 P.2d 608.

Validity of prior convictions. — Where defendant moved for a directed verdict, contending that the state had failed to prove an essential element of the habitual offender charge, the assertedly missing essential element being that the prior convictions were valid, the motion was correctly denied. Validity of the prior convictions is a matter of defense. Until defendant raised an issue as to the validity of the prior convictions, validity was not an issue in the case. The state did not have the burden of proving the validity of the prior convictions. State v. Gallegos, 1977-NMCA-113, 91 N.M. 107, 570 P.2d 938.

Evidence of prior convictions prima facie. — In a habitual offender proceeding, state exhibits showing the prior convictions make a prima facie case as to their prior convictions. State v. Garcia, 1978-NMCA-109, 92 N.M. 730, 594 P.2d 1186, cert. denied, 92 N.M. 675, 591 P.2d 286 (1979).

When validity of prior convictions becomes proper issue. — Until the defendant raises an issue as to the validity of prior convictions, "validity" is not an issue in the case. State v. O'Neil, 1978-NMCA-056, 91 N.M. 727, 580 P.2d 495, cert. denied, 91 N.M. 491, 576 P.2d 297 (decided under former 31-18-5 NMSA 1978).

Asserted invalidity of prior convictions is defense to habitual offender charge. State v. O'Neil, 1978-NMCA-056, 91 N.M. 727, 580 P.2d 495, cert. denied, 91 N.M. 491, 576 P.2d 297.

Defense of invalidity of prior conviction. — Invalidity of a prior conviction is a defense in a habitual offender proceeding and it is defendant's obligation to present evidence in support of this defense. State v. Garcia, 1978-NMCA-109, 92 N.M. 730, 594 P.2d 1186, cert. denied, 92 N.M. 675, 591 P.2d 286 (1979).

Validity of prior guilty pleas is an issue to be decided by the court in an habitual offender proceeding. State v. O'Neil, 1978-NMCA-056, 91 N.M. 727, 580 P.2d 495, cert. denied, 91 N.M. 491, 576 P.2d 297.

The view that all issues of validity are to be decided by the jury in an habitual offender proceeding cannot be subscribed to, particularly where the attack on the prior convictions goes to the validity of defendant's guilty pleas. State v. Martinez, 1978-NMSC-083, 92 N.M. 256, 586 P.2d 1085.

Burden in habitual offender proceeding on defendant to produce evidence that a guilty plea in a previous proceeding was not voluntary or intelligent. State v. Garcia, 1978-NMCA-109, 92 N.M. 730, 594 P.2d 1186, cert. denied, 92 N.M. 675, 591 P.2d 286 (1979).

State not required to carry burden on validity of plea where record silent. — A trial court errs in placing an affirmative burden on the state when the "record is silent" concerning the validity of prior guilty pleas. State v. O'Neil, 1978-NMCA-056, 91 N.M. 727, 580 P.2d 495, cert. denied, 91 N.M. 491, 576 P.2d 297.

Burdens of production of evidence and of persuasion distinguished. — Where defendant's claim of invalidity is raised as a defense to a habitual offender charge, defendant must provide evidence in support of his defense. Once he does so, he is not required to persuade the fact finder concerning his defense; rather, the state has the burden of persuasion because it is the state, not defendant, who must prove a case. State v. O'Neil, 1978-NMCA-056, 91 N.M. 727, 580 P.2d 495, cert. denied, 91 N.M. 491, 576 P.2d 297.

Noncompliance with Rule 21(e), N.M.R. Crim. P. (now Rule 5-303 NMRA) is not basis for attacking validity of guilty pleas to prior felonies in habitual offender proceedings. State v. Gallegos, 1977-NMCA-113, 91 N.M. 107, 570 P.2d 938.

Judgment of sister state admissible. — Admission of an Oklahoma judgment of two prior felonies was proper. The judgment was not inadmissible hearsay, and its admission was not a violation of the constitutional right to confront witnesses. State v. Whiteshield, 1977-NMCA-103, 91 N.M. 96, 570 P.2d 927, cert. denied, 91 N.M. 4, 569 P.2d 414.

Effect of filing notice of appeal. — Where defendant was charged by supplemental information with being the same person who had been convicted of two felonies and who therefore should be sentenced as an habitual offender, and the jury found that the defendant was the same person who committed both offenses, defendant's contention that the trial court lost jurisdiction after the notice of appeal was filed on the second felony conviction and could not hear the issue to be tried on the supplemental information was without merit. The trial court had jurisdiction to impose sentence, since sentencing, in some prescribed statutory form, was a mandatory requirement of the Criminal Code - appeal or no appeal. If the appeal of the second conviction was affirmed the enhanced sentence would stand. In the event of reversal, the conviction and sentence would be vacated. State v. Lujan, 1977-NMCA-093, 90 N.M. 778, 568 P.2d 614.

Claim not made in trial court not considered on appeal. — Defendant claimed on appeal that the charge against him for being an habitual offender was defective for failure to name a specific subsection of the statute, but since no such claim was made in the trial court, it would not be considered on appeal. State v. Jordan, 1975-NMCA-102, 88 N.M. 230, 539 P.2d 620.

Procedural requirements of this section were met and record showed that supplemental information, which sought an enhanced sentence, was read in open court with defendant present, that defendant admitted to being the person convicted as charged in the supplemental information, and that this occurred when defendant was represented by counsel who, immediately after the enhanced sentence was imposed, informed the court that defendant desired to appeal and requested that a bond be set pending the outcome of the appeal. State v. Madrid, 1972-NMSC-016, 83 N.M. 603, 495 P.2d 383.

III. SENTENCES.

Duty of court to impose sentence enhancement. — The court has an affirmative duty to impose the appropriate level of sentence enhancement once the factual issues of identity and prior convictions are resolved against the respondent. State v. Davis, 1986-NMSC-031, 104 N.M. 229, 719 P.2d 807.

Jurisdiction of trial court to sentence is not exhausted until sentence is pronounced, and will carry over from term to term. Pavlich v. State, 1968-NMSC-147, 79 N.M. 473, 444 P.2d 984.

Enhanced sentence may be imposed only in last felony case. — Even though identity is determined in a separate cause, the enhanced sentence may only be imposed in the last case in which the accused was convicted of a felony in this state. State v. Tipton, 1966-NMSC-202, 77 N.M. 1, 419 P.2d 216.

Identity established. — Regardless of whether the identity is determined in a separate case or in a separate proceeding in the felony case following conviction therein, if such identity is established, the enhanced sentence required by the Habitual Criminal Act may only be imposed in the felony case. Lott v. Cox, 1965-NMSC-037, 75 N.M. 102, 401 P.2d 93.

Sentence imposed in habitual criminal proceeding void. — Where defendant's identity as the person previously convicted of two felonies was established in a separate proceeding, and the enhanced sentence was also imposed, the sentence was a nullity and the commitment issued therein is void, as the sentence should have been imposed in the last felony case. State v. Tipton, 1966-NMSC-202, 77 N.M. 1, 419 P.2d 216.

Defendant may be returned for imposition of proper sentence. — Where defendant has been legally convicted, but no judgment or sentence has been imposed, and defendant's identity as an habitual offender has been established and he was sentenced, defendant's restraint is illegal because sentence was imposed in the wrong case. In such a situation, defendant may be returned to the trial court for imposition of a proper sentence. State v. Tipton, 1966-NMSC-202, 77 N.M. 1, 419 P.2d 216.

Murder sentences. — A sentence in a cause charging violation of the habitual offender statute by a defendant who pleaded guilty to two murder charges is void and he should be remanded for sentencing in the murder cases. Miller v. Cox, 1965-NMSC-031, 75 N.M. 65, 400 P.2d 480.

Previous regular sentences vacated and enhanced sentences imposed. — Where regular sentences were imposed upon defendants prior to the time their status as habitual offenders was determined, the regular sentences are to be vacated and the enhanced sentences are to be imposed. State v. Baker, 1977-NMCA-033, 90 N.M. 291, 562 P.2d 1145.

Correcting and vacating sentence. — Although the sentence of the court in the felony case was incomplete until the resentence, as the previous sentence was not vacated and the mandatory statutory increased punishment imposed as required by law, there is no reason, constitutional or otherwise, why the court which imposed sentence may not correct what it did wrongly by vacating the sentence for breaking and entering and imposing the mandatory sentence in place of the one vacated. State v. Gonzales, 1972-NMCA-130, 84 N.M. 275, 502 P.2d 300, cert. denied, 84 N.M. 271, 502 P.2d 296.

There is no requirement of law that the punishment for the felony of which accused was convicted be first imposed and then vacated in order to impose the increased punishment prescribed by the habitual offender statute. Lott v. Cox, 1965-NMSC-037, 75 N.M. 102, 401 P.2d 93.

Statute does not require that sentence be first imposed in the felony conviction and then vacated before the increased punishment prescribed by the habitual offender statute may be imposed. State v. Bonner, 1970-NMCA-047, 81 N.M. 471, 468 P.2d 636.

Arrangement of manner in which enhanced sentence will be served. — In imposing the new enhanced sentences, the trial court's arrangement of the manner in which the new enhanced sentences will be served is not limited by the arrangement for serving the regular sentences which should have been vacated. State v. Baker, 1977-NMCA-033, 90 N.M. 291, 562 P.2d 1145.

Change from suspended sentence to sentence to be served. — Inasmuch as the trial court had no authority to suspend the enhanced sentence, a change from a suspended sentence to a sentence to be served when sentence as a habitual offender was imposed was proper. State v. Baker, 1977-NMCA-033, 90 N.M. 291, 562 P.2d 1145.

Right to counsel. — An indigent defendant facing the imposition of penalties under the habitual criminal statutes is entitled to have an attorney appointed to represent him in such hearing. There is no requirement that such appointed attorney be the same attorney that represented the indigent defendant in the proceeding which resulted in the Habitual Criminal Act becoming applicable. This is so even though the habitual criminal proceedings may be filed in the same action. Such being the case, it necessarily follows that the question of identity of the attorney in the two proceedings is of no consequence and that the court may pay him for his services in the initial proceeding and in the habitual criminal proceeding as well. 1966 Op. Att'y Gen. No. 66-27.

Law reviews. — For article, "Survey of New Mexico Law, 1979-80: Criminal Law and Procedure," see 11 N.M.L. Rev. 85 (1981).

For annual survey of New Mexico law relating to criminal procedure, see 13 N.M.L. Rev. 341 (1983).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law § 677 et seq.; 39 Am. Jur. 2d Habitual Criminals, etc. § 29 et seq.

Reasonable doubt: rule of reasonable doubt as applicable to proof of previous conviction for purpose of enhancing punishment, 79 A.L.R. 1337.

Overemphasis in proof of former conviction in connection with habitual criminal law, or unnecessary introduction of evidence in that regard, as prejudicial to accused, 144 A.L.R. 240.

Cross-examination of accused: accused who testifies in his own behalf as subject to cross-examination to show previous conviction in order to enhance punishment, 153 A.L.R. 1159.

Habeas Corpus: invalidity of prior conviction or sentence as ground of habeas corpus where one is sentenced as second offender, 171 A.L.R. 541.

Identity: necessity, character and sufficiency of evidence of identity for purpose of statute as to enhanced punishment in case of prior conviction, 11 A.L.R.2d 870.

Right of court in imposing sentence to consider other offenses committed by defendant in absence of statute in that regard, 96 A.L.R.2d 768.