State v. Mosley, 79 N.M. 514, 445 P.2d 391 (1968)

Sept. 13, 1968 · Court of Appeals of New Mexico · No. 224
79 N.M. 514, 445 P.2d 391

445 P.2d 391

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

No. 224.

Court of Appeals of New Mexico.

Sept. 13, 1968.

*515B. R. Baldock, Sanders & Bruin, Roswell, for defendant-appellant.

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


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 pleg..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.