STATE V. RODRIGUEZ, 1971-NMSC-098, 83
N.M. 180, 489 P.2d 1178 (S. Ct. 1971)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
BRAULIO RODRIGUEZ, Defendant-Appellant
SUPREME COURT OF NEW MEXICO
1971-NMSC-098, 83 N.M. 180, 489 P.2d 1178
Appeal from the District Court of
Guadalupe County, Angel, Judge
DAVID L. NORVELL, Attorney General,
THOMAS L. DUNIGAN, Asst. Atty. Gen., Santa Fe, New Mexico, Attorneys for
Appellee.
LEON KARELITZ, Las Vegas, New Mexico,
Attorney for Appellant.
OMAN Justice, wrote the opinion.
Donnan Stephenson, J., Samuel Z. Montoya,
J.
{1} The trial court denied
defendant's motion for post-conviction relief under Rule 93 [§ 21-1-1(93), N.M.S.A.
1953 (Repl. Vol. 4, 1970)] without granting an evidentiary hearing thereon. In
order to prevail under his first point relied upon for reversal, he concedes we
must reconsider and overrule our opinion in State v. Fines,
78 N.M. 737,
437
P.2d 1006 (1968), in which we held the admissibility of illegally obtained
evidence is not an issue reviewable under Rule 93, if the circumstances of the
search and seizure were fully known to defendant at the time of trial.
{2} Our opinion in State v.
Fines, supra, has been followed in a number of decisions by this court and by
the New Mexico Court of Appeals, and we are not now inclined to overrule it.
{3} Under his second point
defendant contends: (1) he could not properly be tried, convicted and sentenced
under an information charging him with first degree murder; (2) he was denied a
speedy trial; (3) a statement used against him was involuntarily obtained; (4)
he was denied the effective assistance of counsel, and (5) the evidence was
insufficient to support his conviction.
{5} He must fail in his
second contention because he did not ask for a speedy trial and he raised no
question concerning the same before trial. Patterson v. State,
81 N.M. 210,
465
P.2d 93 (Ct. App. 1970).
{6} The record conclusively
supports the finding of the trial court that the statement was voluntarily,
intelligently and knowingly made by defendant after he had
{*181}
received all admonitions required under Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Thus, his third contention is without
merit.
{7} His fourth contention is
likewise without merit since the record affirmatively shows his trial was not a
sham, a farce or a mockery. State v. Ramirez,
81 N.M. 150,
464 P.2d 569 (Ct.
App. 1970).
{8} His final contention has
already been ruled upon adversely to him. State v. Rodriguez,
81 N.M. 503,
469
P.2d 148 (1970).
{9} The order denying the
motion should be affirmed.
Donnan Stephenson, J., Samuel Z. Montoya, J.