(dissenting).
{23} I respectfully dissent. In this case, the district court sentenced Defendant to six years in prison less one day and then suspended the sentence, placing Defendant on probation for five years. After his bond was released, Defendant filed his appeal. Defendant filed no motion to establish conditions of release pending appeal as allowed by Rule 12-205(B). The majority holds that the district court lost jurisdiction to revoke Defendant’s probation because Defendant’s case was on appeal. I disagree and would affirm based in part on our Supreme Court’s observation in Kelly Inn v. Kapnison, 113 N.M. 231, 241, 824 P.2d 1033, 1043 (1992) that:
[T]he rule that an appeal ‘completely divests’ the trial court of jurisdiction over ‘the case’ or ‘the litigation’ has, through frequent repetition, taken on the character of an inflexible law of nature rather than a pragmatic guideline enabling trial courts to determine when to proceed further with some part of a case and when to refrain because issues already resolved are under consideration by an appellate court.
The law and facts in this case justify a more flexible pragmatic approach.
{24} Section 31-21-5 defines probation as a procedure under which a convicted adult defendant “is released by the court without imprisonment under a suspended ... sentence and subject to conditions.” NMSA 1978, § 31-21-5 (1991). Section 31-21-5 further clarifies the district court’s authority regarding the imposition of probation and limits the total period of time probation can be imposed. Section 31-21-15 relates to probation violators and clearly gives the district court the power to take action once an alleged violation of probation has occurred. NMSA 1978, § 31-21-15 (1989). There is no language in this statute that eliminates the district court’s jurisdiction to handle probation violations of convicted defendants who appeal their convictions.
{25} Section 31-11-1 deals with the effect of an appeal on a sentence. NMSA 1978, § 31-11-1 (1988). Subsection (A) states that all appeals have the effect of a stay of execution of the sentence of a district court until the decision of the appellate court to which the appeal was made. Those defendants who appeal but who cannot be released during the pendency of their appeal are detained until their appeal is finally decided. Subsections (B), (C), and (D) limit a defendant’s right to release pending appeal. Subsection (E) limits a defendant’s right to release based on parole or probation violations. Once a defendant is sentenced and his or her case is on appeal, the district court continues to have jurisdiction to make decisions regarding release as per Subsections (B), (C), and (D). Similarly, I find nothing that would affect the district court’s continuing jurisdiction to make decisions regarding probation revocation, especially since Subsection (E) specifically relates to release while awaiting the district court’s order regarding a motion to revoke the probation.
{26} In this case, Defendant’s sentence was suspended and he was placed on probation. As long as he observed the conditions of probation, he was to spend no time in jail. Under the majority’s holding, it appears that convicted defendants who are placed on probation and who file an appeal of their case but do not file a motion to establish conditions of release under Section 12-2-5(B), would have to be detained awaiting disposition of appeal. This result makes little sense.
{27} The majority relies on Carrasco for the proposition that the district court is divested of jurisdiction during the pendency of an appeal “except for purpose of perfecting appeal and passing on pending motions.” 1997-NMCA-123, ¶ 6, 124 N.M. 320, 950 P.2d 293. In Carrasco, defendant appealed the restitution portion of the probation order itself. The district court then issued a certificate of unsatisfactory discharge of probation without giving the defendant a hearing. We determined that the district court had no jurisdiction to make decisions on the probation order. Id. In that case, however, the probation order was the very order that was on appeal. In the instant case, Defendant did not appeal the probation order, but rather his conviction. While I agree that the district court has no jurisdiction on issues relating to the conviction itself, decisions regarding probation violations are different.
{28} The majority also cites to Ramirez, 76 N.M. 72, 412 P.2d 246, a 1966 Supreme Court case, to support its argument that the statutory stay of an execution of the sentence during appeal means that the district court is without jurisdiction over the conditions of probation. In Ramirez, defendant was in jail pending appeal of his armed robbery conviction. He wanted to waive the stay of execution of his sentence. He was unable to make appeal bond and argued that unless the time spent in jail during appeal was counted towards his sentence, his constitutional due process and equal protection rights would be violated. Id. at 75, 412 P.2d at 249. Our Supreme Court said that the statute providing for stay of execution during appeal contains no provision for a waiver, and it would not allow defendant to circumvent the law regarding commencement of his sentence. Id. The Court denied his waiver of supersedeas. Id. at 76, 412 P.2d at 250.
{29} To take some language out of Ramirez, “the situation in the instant case is vastly different.” Id. at 74, 412 P.2d at 248 (arguing against applying a criminal procedure rule to the Ramirez case). This case does not “come within the rule announced” in Ramirez. Id. In our case, Defendant is not in jail and is not trying to circumvent the law on commencement of sentence. The policy reasons for applying the rule in Ramirez are simply absent in our case.
{30} Since 1966, the legislature has made numerous changes to laws regarding sentencing, credit for time in custody, and release while on bail. See, e.g., NMSA 1978, §§ 31-11-1, 31-21-11 (1982), and 31-21-15. Additionally, the judiciary has amended its rules. See, e.g., Rule 5-402; Rule 5-403; Rule 5-405 NMRA 2003. Now a defendant who remains in official confinement during the pendency of an appeal can receive credit for time served against any sentence finally imposed. Consequently, Ramirez’s attempt to get credit against his sentence for his period of incarceration prior to determination of his appeal would be allowed under present statutes.
{31} Defendant in this case chose to begin serving probation knowing that, unlike time on release under Rule 5-402, he would be given credit on his sentence. See § 31-21-15(B). He did not file a motion to establish conditions of release and is bound by that decision. We observe that the actions on which the motion to revoke was filed are very probably the same acts that would have been prohibited in the conditions of release. To allow jurisdiction in eases of release but not in cases of probation makes little sense.
{32} The majority also refers to the language in Cordova, 100 N.M. 643, 674 P.2d 533 regarding restitution. In Cordova, defendant’s three-year sentence to prison for aggravated battery was suspended. He was ordered on probation for two years and required to pay restitution. Id. at 647, 674 P.2d at 537. Defendant successfully appealed his conviction and was retried before the same judge. The second time around, the judge sentenced him “to three years’ imprisonment, with two years of ‘mandatory’ parole upon his release from incarceration.” Id. The record showed that the “reason that the trial court changed the sentence was due to defendant’s failure to make restitution.” Id.
{33} The issue that this Court was considering in Cordova was “[w]hether the imposition of a harsher penalty following a successful appeal violated defendant’s due process rights.” Id. Holding that the “trial court violated defendant’s due process rights when the trial court changed the original sentence based on the facts before this court,” this Court “eonclude[d] that defendant was under no legal duty except moral, perhaps, to make any restitution during the pendency of his first appeal.” Id. at 648, 674 P.2d at 538. Citing Ramirez, it then reiterated the rule that “all appeals have the effect of a stay of execution.” Id. Just as in Ramirez, the context in which the rule was applied in Cordova is so far removed from our case as to be inapplicable. The policy reasons underlying its application in Cordova — to prevent a due process violation and the imposition of a more severe sentence after a new trial thus raising the possibility of judicial vindictiveness — are absent here.
{34} Support for affirmance is found in Padilla, 106 N.M. 420, 744 P.2d 548. In that case, defendant appealed from the district court’s revocation of the probation portion of his sentence arguing that the district court could not revoke his probation because he had not even started to serve it. This Court held that a defendant who commits a probation violation while still serving the custodial portion of his sentence is subject to revocation of his probation even though he has not begun to serve probation. Id. at 422, 744 P.2d at 550. We also concluded that “[t]he sentencing court retains jurisdiction to revoke a suspended sentence for good cause shown at any time subsequent to the entry of judgment and prior to the expiration of the sentence.” Id. There is no mention of an exception for the time pending appeal.
{35} A comparison of the statutes and rules regarding release pending appeal lead to the same conclusion. Rule 5-^102(0 allows the court after sentencing to “establish conditions of release pending appeal” upon “motion of the defendant.” Subsection (D) of Rule 5-402 specifically states that the “taking of an appeal does not deprive the district court of jurisdiction under Rule 5 — 403,” the rule that allows the court to review conditions of release. A defendant may appeal the district court’s determinations regarding release as well as any determination regarding the review of those conditions. Rule 5-403(B). Clearly, the district court has jurisdiction to make decisions regarding release conditions which are similar to conditions of release in a probation order. To allow the court to continue its jurisdiction in cases regarding release pending appeal but not in cases regarding revocation of probation defies logic.
{36} Common sense also supports this approach. The purpose of Section 31-11-1 is to allow those defendants who meet certain criteria and who agree to certain conditions, to be released pending appeal of their case. Probation achieves this same objective. If a district court believes that probation is the better sentencing option, why make the defendant request that the court establish separate conditions of release pending appeal as per Rule 5-402(C) when the probation order already has the conditions of release the district court deems necessary and Section 31-21-15 sets out the procedures for handling probation violators? The district courts are already overloaded with paperwork. We must be mindful of the practical consequences of our decisions. In this case, Defendant’s rights related to his appeal are not jeopardized nor is the judicial system compromised by holding that the district court still has jurisdiction to decide matters regarding probation revocation.
{37} For the above reasons, I respectfully dissent.