holding that when defendant’s guilty plea is involuntary because he is erroneously informed of the consequences, the correct remedy is to allow him to withdraw it
How later courts described this case
- holding that when defendant’s guilty plea is involuntary because he is erroneously informed of the consequences, the correct remedy is to allow him to withdraw it
- holding that the opposing party 13 must come forward and specifically point to error in fact or in law in the proposed 14 disposition
- holding that the 4 opposing party must come forward and specifically point to error in fact or in law in 5 the proposed disposition
- stating that 12 opposing party must come forward and specifically point to error in fact or in law in 13 the proposed disposition
Written by the judges who cited it.
The opinion
RIORDAN, Justice, specially concurring.
I concur in the result reached by the Chief Justice in his opinion. I do not join in the opinion because I disagree with the statement that the memorandum in opposition to the proposed summary reversal did not show cause why the case should not be summarily reversed.
I support the concept of the summary calendar. A number of appeals can fairly and properly be disposed of in this manner without the delay and expense of a transcript because a transcript is not necessary to decide the issue(s) raised on appeal. However, when the memorandum in response to a proposed summary disposition alerts the appellate court to a dispute as to the facts presented to the district court, then the appellate court, in my opinion, has an obligation to see that the portion of the transcript is prepared that is necessary to decide the issues on appeal. This can be done either by reassigning the appeal to a different calendar or ordering a transcript. See N.M.R.Crim.App. 207(d), N.M.S.A.1978.
In this case the memorandum in opposition to the proposed summary disposition states:
Pursuant to Rule 21, N.M. Rules of Crim.Pro., guidelines are provided for accepting a plea of guilty. Subsection (g)(2) provides that the agreement, if any, be reduced to writing on a form approved by the Supreme Court, and the agreement shall be required to be disclosed by the Court when the plea is offered. The Clerk’s record does not contain this document. Therefore a transcript of all the proceeding below is necessary to determine the status of this plea. It is up to the Defendant to prove that the plea was involuntary. State v. Ortiz, 77 N.M. 751 , 427 P.2d 264 (1967). And a review of the hearing at which the plea was accepted would uncover any, if any at all, representations made by the prosecution.
I feel that this statement by the Attorney General was sufficient to require the case to be re-calendared and the transcript of the plea prepared for appellate review.
I agree with the majority that the appropriate remedy for the defendant in this case is to allow him to withdraw his guilty plea.