NM Stat § 31-18-17 (2021)
2021 New Mexico Statutes|Chapter 31 - Criminal Procedure|Article 18 - Criminal Sentencing|Section 31-18-17 - Habitual offenders; alteration of basic sentence.

A. A person convicted of a noncapital felony in this state whether within the Criminal Code [Chapter 30 NMSA 1978] or the Controlled Substances Act [Chapter 30, Article 31 NMSA 1978] or not who has incurred one prior felony conviction that was part of a separate transaction or occurrence or conditional discharge under Section 31-20-13 NMSA 1978 is a habitual offender and his basic sentence shall be increased by one year. The sentence imposed pursuant to this subsection shall not be suspended or deferred, unless the court makes a specific finding that the prior felony conviction and the instant felony conviction are both for nonviolent felony offenses and that justice will not be served by imposing a mandatory sentence of imprisonment and that there are substantial and compelling reasons, stated on the record, for departing from the sentence imposed pursuant to this subsection. B. A person convicted of a noncapital felony in this state whether within the Criminal Code or the Controlled Substances Act or not who has incurred two prior felony convictions that were parts of separate transactions or occurrences or conditional discharge under Section 31-20-13 NMSA 1978 is a habitual offender and his basic sentence shall be increased by four years. The sentence imposed by this subsection shall not be suspended or deferred. C. A person convicted of a noncapital felony in this state whether within the Criminal Code or the Controlled Substances Act or not who has incurred three or more prior felony convictions that were parts of separate transactions or occurrences or conditional discharge under Section 31-20-13 NMSA 1978 is a habitual offender and his basic sentence shall be increased by eight years. The sentence imposed by this subsection shall not be suspended or deferred. D. As used in this section, "prior felony conviction" means: (1) a conviction, when less than ten years have passed prior to the instant felony conviction since the person completed serving his sentence or period of probation or parole for the prior felony, whichever is later, for a prior felony committed within New Mexico whether within the Criminal Code or not, but not including a conviction for a felony pursuant to the provisions of Section 66-8-102 NMSA 1978; or (2) a prior felony, when less than ten years have passed prior to the instant felony conviction since the person completed serving his sentence or period of probation or parole for the prior felony, whichever is later, for which the person was convicted other than an offense triable by court martial if: (a) the conviction was rendered by a court of another state, the United States, a territory of the United States or the commonwealth of Puerto Rico; (b) the offense was punishable, at the time of conviction, by death or a maximum term of imprisonment of more than one year; or (c) the offense would have been classified as a felony in this state at the time of conviction. E. As used in this section, "nonviolent felony offense" means application of force, threatened use of force or a deadly weapon was not used by the offender in the commission of the offense. History: 1953 Comp., § 40A-29-30, enacted by Laws 1977, ch. 216, § 6; 1979, ch. 158, § 1; 1983, ch. 127, § 1; 1993, ch. 77, § 9; 1993, ch. 283, § 1; 2002, ch. 7, § 1; 2003, ch. 90, § 1. ANNOTATIONSCross references. — For procedure and sentencing, see 31-18-20 NMSA 1978. For time period within which habitual criminal offender proceeding must be commenced, see Rule 5-604 NMRA. The 2003 amendment, effective March 28, 2003, inserted "but not including a conviction for a felony pursuant to the provisions of Section 66-8-102 NMSA 1978" near the end of Paragraph D(1). The 2002 amendment, effective July 1, 2002, deleted former Subsection A defining "prior felony conviction" and redesignated the following subsections accordingly; updated the internal references in Subsections A, B, and C; added the last sentence in present Subsection A; and added Subsections D and E. The 1993 amendment, effective June 18, 1993, inserted "or conditional discharge under Section 31-20-7 NMSA 1978" in Subsections B through D. This section was also amended by Laws 1993, ch. 77, § 9, effective July 1, 1993. The section was set out as amended by Laws 1993, ch. 283, § 1. See 12-1-8 NMSA 1978. Section 31-20-7 was compiled as 31-20-13 to avoid confusion with the repealed 31-20-7 NMSA 1978. I. GENERAL CONSIDERATION.Use of noncapital felonies to enhance a capital felony. — Where defendant was convicted of first degree murder, a capital felony, the district court erred in enhancing defendant's sentence for being a habitual offender, because the enhancement for being a habitual offender applied only to noncapital felonies. State v. Serna, 2013-NMSC-033. Enhancement based on parole violation. — Pursuant to defendant's plea agreement, defendant was convicted of nine property offenses and received basic sentences that ran consecutively, two of the sentences were enhanced based on two prior felony convictions; defendant agreed that the remaining sentences would be subject to habitual offender enhancement upon a violation of law or a violation of a condition of parole or probation; defendant violated the conditions of parole for one of the offenses that had been fully enhanced under the plea agreement; the district court found that defendant was an habitual offender and enhanced each of the seven sentences that had not been enhanced under the plea agreement; and there was nothing in the plea agreement that provided that a parole violation applied only to the offense underlying the parole, the district court properly enhanced defendant's sentences for the seven convictions that had not been enhanced under the plea agreement based on the parole violation. State v. Triggs, 2012-NMCA-068, 281 P.3d 1256. Section 31-18-17 NMSA 1978 does not apply for a first degree murder conviction. State v. Paiz, 2011-NMSC-008, 149 N.M. 412, 249 P.3d 1235. Proof of prior conviction. — Where defendant raised the issue at the time of sentencing and the plea agreement did not satisfy the elements for a prior felony conviction, the state must make its prima facie showing that a prior conviction meets the definition of "prior felony conviction" under Section 31-18-17 NMSA 1978. The state has the burden of proving identity, conviction, and timing. State v. Simmons, 2006-NMSC-044, 140 N.M. 311, 142 P.3d 899. Ten year limitation. — The ten-year limitation in Section 31-18-17D NMSA 1978 does not apply to the robbery statute. State v. Torres, 2006-NMCA-106, 140 N.M. 230, 141 P.3d 1284, cert. denied, 2006-NMCERT-008. Conviction beyond ten-year limitation. — Where defendant was convicted of first-degree murder and attempted first-degree murder, the trial court erred in enhancing defendant's sentence pursuant to the habitual offender statute, because more than ten years had elapsed between defendant's discharge on his prior felony conviction and the date of actual conviction of the current offense. State v. Torres, 2018-NMSC-013. Allocution. — The right of the defendant to say why sentence should not be pronounced on the defendant before the trial judge pronounces sentence applies to habitual offender sentencing. State v. Leyba, 2009-NMCA-030, 145 N.M. 712, 204 P.3d 37, cert. denied, 2009-NMCERT-002, 145 N.M. 704, 204 P.3d 29. The controlling date for calculating the ten-year period from which prior convictions can be used to enhance the defendant's sentence is the date of the defendant's current felony conviction for which the sentence is being imposed. State v. Tave, 2007-NMCA-059, 141 N.M. 571, 158 P.3d 1014, cert. denied, 2007-NMCERT-005, 141 N.M. 762, 161 P.3d 259. Constitutional provision inapplicable. — Because the Habitual Offender Act was not repealed, N.M. Const., art. IV, § 33, does not apply to the 2002 amendment to this section or to the interpretation of the amendment through 12-2A-16 NMSA 1978. State v. Shay, 2004-NMCA-077, 136 N.M. 8, 94 P.3d 8, cert. quashed, 2005-NMCERT-002, 137 N.M. 266, 110 P.3d 74. Application of 2002 amendment. — The date a sentence is imposed is the appropriate date to determine whether the 2002 amendment to this section applies to a given case. State v. Shay, 2004-NMCA-077, 136 N.M. 8, 94 P.3d 8, cert. quashed, 2005-NMCERT-002, 137 N.M. 266, 110 P.3d 74. The 2002 amendment to this section does not apply to defendant's sentence for a probation violation when the original sentence was imposed prior to the amendment's effective date under a plea agreement. State v. Ortega, 2004-NMCA-080, 135 N.M. 737, 93 P.3d 758, cert. denied, 2004-NMCERT-006, 135 N.M. 787, 93 P.3d 1292. Where the district court accepted a plea agreement and entered sentence prior to July 1, 2002, and the sentence included a suspended sentence and probation, but after a probation violation, the district court ordered the basic sentence to be served as well as a habitual offender enhancement for a prior felony conviction that would not have been included for enhancement purposes under the 2002 amendment, because the district court had imposed sentence prior to July 1, 2002, based on the plea agreement, it properly applied this section. State v. Ortega, 2004-NMCA-080, 135 N.M. 737, 93 P.3d 758, cert. denied, 2004-NMCERT-006, 135 N.M. 787, 93 P.3d 1292. Effect of 2002 amendment constitutionally precluded. — N.M. Const., art. IV, § 34 precludes the effect of the 2002 amendment to the habitual offender statute, when a supplemental criminal information is filed before, and defendant is sentenced after, the July 1, 2002 effective date of the amendment. State v. Stanford, 2004-NMCA-071, 136 N.M. 14, 94 P.3d 14. It is solely within province of legislature to establish penalties for criminal behavior. State v. Lack, 1982-NMCA-111, 98 N.M. 500, 650 P.2d 22, cert. denied, 98 N.M. 478, 649 P.2d 1391. Application to Controlled Substances Act. — In 1983 the habitual offender statute was amended to include persons convicted of narcotics offenses, overruling that part of State v. Lujan, 1966-NMSC-051, 76 N.M. 111, 412 P.2d 405, which held that the Habitual Offender Act did not apply to persons convicted under the Controlled Substances Act (Section 30-31-1 NMSA 1978 et seq.). Minner v. Kerby, 30 F.3d 1311 (10th Cir. 1994). Although the habitual offender statute applies to a prior felony conviction under the Controlled Substances Act, Sections 30-31-1 NMSA 1978 et seq., it does not apply if there is a conditional discharge under Section 30-31-28 NMSA 1978. State v. Fairres, 2003-NMCA-152, 134 N.M. 668, 81 P.3d 611, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668. The Habitual Offender Act is applicable to convictions of felony battery against a household member. — Where defendant pleaded guilty to battery against a household member after battering the mother of his child, and where this was defendant's third conviction of battery against a household member, and where the district court enhanced defendant's conviction to a fourth degree felony under § 30-3-17(A) NMSA 1978, and where defendant had previously been convicted of a separate felony, the district court enhanced defendant's sentence by one year under the Habitual Offender Act, § 31-18-17 NMSA 1978, the district court did not err in applying the Habitual Offender Act, because the plain language of § 30-3-17(A) NMSA 1978 and § 31-18-17 NMSA 1978 does not preclude their simultaneous application. State v. Barela, 2021-NMSC-001, aff'g 2019-NMCA-005, 458 P.3d 501. Application to felony battery against a household member. — Where defendant, a three-time domestic violence offender, pleaded no contest to, and was convicted of, felony battery against a household member pursuant to 30-3-17 NMSA 1978, the district court did not err in enhancing defendant's sentence by one year, pursuant to 31-18-17(A) NMSA 1978, based on a prior conviction for false imprisonment, because contrary to defendant's argument, the felony battery against a household member statute is not self-enhancing, and based on the plain language of the statutes at issue, the one-year habitual offender enhancement of defendant's fourth degree felony battery on a household member sentence was proper as a matter of law. State v. Barela, 2019-NMCA-005, cert. granted.Intent of habitual criminal provisions. — Object of habitual offender statute is to inhibit repetition of criminal acts by individuals against the peace and dignity of the state. It is designed to protect society against habitual offenders. State v. Baldonado, 1968-NMCA-025, 79 N.M. 175, 441 P.2d 215. It is inherent in the habitual criminal statutes that, after punishment is imposed for the commission of a crime, the increased penalty is held in terrorem over the criminal for the purpose of effecting his reformation and preventing further and subsequent offenses by him, so that for the purpose of this section, each felony must have been committed after conviction for a preceding felony. State v. Montoya, 1979-NMCA-044, 92 N.M. 734, 594 P.2d 1190, aff'd, 1980-NMSC-093, 94 N.M. 704, 616 P.2d 417; State v. Linam, 1979-NMSC-004, 93 N.M. 307, 600 P.2d 253; State v. Rogers, 1979-NMSC-085, 93 N.M. 519, 602 P.2d 616. The intent of habitual offender laws is to provide an increased penalty in order to deter commission of a subsequent offense. It is the opportunity to reform under threat of a more severe penalty which serves to deter. State v. Linam, 1979-NMSC-004, 93 N.M. 307, 600 P.2d 253, cert. denied, 444 U.S. 846, 100 S. Ct. 91, 62 L. Ed. 2d 59 (1979). This section is not an ex post facto law since it is procedural in nature. It does not punish criminals for earlier offenses, but merely increases the penalty for the repetition of criminal conduct. State v. Oglesby, 1981-NMCA-070, 96 N.M. 352, 630 P.2d 304. Enhanced punishment not prohibited as double jeopardy. — Since defendant's first conviction, standing alone, was not the cause of the enhanced sentence of which he complained, defendant's enhanced punishment was not prohibited as double jeopardy. State v. Gonzales, 1972-NMCA-130, 84 N.M. 275, 502 P.2d 300, cert. denied, 84 N.M. 271, 502 P.2d 296. The contention that the habitual offender statute violates double jeopardy is without merit. State v. Olivares, 1980-NMCA-165, 95 N.M. 222, 620 P.2d 380. Because the habitual offender proceeding is a sentencing procedure and not a trial of an offense, there is no double jeopardy. State v. James, 1980-NMSC-082, 94 N.M. 604, 614 P.2d 16. Since the law in New Mexico is that an habitual proceeding only involves sentencing and not the trial of any crime, double jeopardy does not attach to proceedings under this section. State v. Garcia, 1980-NMSC-132, 95 N.M. 246, 620 P.2d 1271. The imposition of an enhanced sentence after defendant has already begun serving his sentence on the underlying felony conviction is not violative of constitutional double jeopardy provisions. State v. Oglesby, 1981-NMCA-070, 96 N.M. 352, 630 P.2d 304. Habitual offender enhancement of an escape conviction does not constitute double jeopardy. State v. Najar, 1994-NMCA-098, 118 N.M. 230, 880 P.2d 327, cert. denied, 118 N.M. 90, 879 P.2d 91. New Mexico's habitual offender statute does not multiply punishments for a prior crime, but simply increases the punishment for a new crime. Because sentences enhanced under habitual offender statutes are not punishment for the prior offense, they do not normally raise double jeopardy issues. Yparrea v. Dorsey, 64 F.3d 577 (10th Cir. 1995). When a defendant with two prior felonies was convicted of a third felony and, under a plea agreement, was sentenced as a second offender subject to resentencing as a third offender if he violated the terms of his probation, the enhancement of his sentence as a third offender when he was resentenced following his violation of probation did not violate double jeopardy. State v. Freed, 1996-NMCA-044, 121 N.M. 562, 915 P.2d 325, cert. denied, 121 N.M. 644, 916 P.2d 844. Defendant, a three-time felony offender, had no reasonable expectation of finality in a three-year probationary sentence for a larceny conviction; therefore, it was not a violation of his double jeopardy rights for the state to seek a subsequent conviction of defendant, during the probationary period, under the habitual offender laws. State v. Villalobos, 1998-NMSC-036, 126 N.M. 255, 968 P.2d 766. No reasonable expectation of finality. — Where defendant pleaded no contest to aggravated battery causing great bodily harm and aggravated assault with a deadly weapon, receiving a three-year sentence on the battery charge and a one and one-half-year sentence on the assault charge, and where the trial judge suspended three years of defendant's total sentence and ordered defendant to be placed on supervised probation for three years following release from custody, and where defendant, after being released from prison, violated the conditions of his probation, the district court did not err in enhancing defendant's aggravated battery conviction, because defendant did not have a reasonable expectation of finality as to the aggravated battery charge, because defendant would have expected to serve a three-year period of probation and be subject to additional enhancement of the sentence imposed for the aggravated battery during the entire period of probation. State v. Yazzie, 2018-NMCA-001, cert. denied. Habitual offender enhancement statute prior to 2002. — Where defendant pleaded no contest and was sentenced for aggravated battery and aggravated assault prior to July 1, 2002, and where, under the judgment and sentence, an eight year habitual offender enhancement was held in abeyance only to be imposed upon a subsequent violation of probation, and where defendant violated his probation in 2013, the district court had continuing jurisdiction to impose the enhancement under the habitual offender statute when defendant violated probation in 2013 for prior convictions occurring in 1992 and earlier, because prior to 2002, the imposition of the habitual offender statute was mandatory in all cases in which there was a prior felony conviction, regardless of the date of the prior conviction. State v. Yazzie, 2018-NMCA-001, cert. denied. Insufficient evidence is not a bar to retrial of a defendant's habitual offender status. — Following defendant's conviction for battery on a peace officer, where the state filed a supplemental criminal information alleging that defendant was a habitual offender and seeking enhancement of defendant's sentence, and where the state failed to introduce a certified copy of his fingerprint card from the current case, leading the district court to rule that the state's evidence was not sufficient to prove that defendant was the person convicted of the prior felonies as alleged in the supplemental criminal information and to deny the state's request for sentencing enhancement, but where the district court granted the state's request for a second sentencing hearing to address defendant's habitual offender status, during which the district court found that defendant was a habitual offender, the district court did not err in allowing the retrial of defendant's habitual offender status, because sentencing decisions favorable to the defendant cannot be analogized to an acquittal, and insufficient evidence is never a bar to the retrial of a defendant's status as a habitual offender. State v. Salas, 2017-NMCA-057, cert. denied. To enhance a defendant's sentence, due process is required. — In order to subject a defendant to a statutory sentencing enhancement, due process requires that the defendant be given notice, that enhancement of sentence is sought by a pleading filed by the state, and an opportunity to be heard before an increased penalty can be imposed. State v. Salas, 2017-NMCA-057, cert. denied. Defendant was not denied due process in his sentence enhancement. — Where defendant was convicted of battery on a peace officer and where the State filed a supplemental criminal information alleging that defendant was a habitual offender subject to sentence enhancement, requested a special setting for the purpose of conducting a habitual offender hearing, certifying service to defense counsel the same day, and where defendant's motion opposing retrial of his habitual offender status indicated that defendant had actual notice of a subsequent sentencing hearing, defendant was not deprived of an opportunity to be heard, and the state's procedural steps constituted adequate notice. State v. Salas, 2017-NMCA-057, cert. denied. Multiple uses of prior convictions do not violate double jeopardy. — Where defendant's prior felony convictions were used to establish defendant's status as a habitual offender for sentencing for attempted murder and to serve as the predicate felony for defendant's conviction of felon in possession of a firearm, the double jeopardy clause was not violated. State v. Tafoya, 2012-NMSC-030, 285 P.3d 604. Delay in filing charge not, in itself, prejudicial. — A due process issue based on a delay in filing a charge involves prejudice that deprives the defendant of a fair trial on the delayed charge. The delay, in itself, does not establish prejudice. State v. Mayberry, 1982-NMCA-061, 97 N.M. 760, 643 P.2d 629. Supplemental habitual offender charge not dismissed where original sentence not completely served. — Where, at the time a supplemental information is filed, the defendant has not completed serving his original sentence, the filing delay, in relation to time served, does not require a dismissal of an habitual offender charge. State v. Mayberry, 1982-NMCA-061, 97 N.M. 760, 643 P.2d 629. No dismissal for delay even where prosecutor originally knew of prior conviction. — Where, before the defendant is convicted for a felony, the prosecutor knows of a prior felony conviction, this knowledge does not require the dismissal of a latter habitual offender charge because of a filing delay. State v. Mayberry, 1982-NMCA-061, 97 N.M. 760, 643 P.2d 629. Delay in enhancement sentencing constitutional. — Even if the habitual offender proceeding in defendant's case was part of his burglary prosecution, delay of his enhancement sentencing for at least 15 months after he pleaded guilty did not violate his right to a speedy trial. Perez v. Sullivan, 793 F.2d 249 (10th Cir.), cert. denied, 479 U.S. 936, 107 S. Ct. 413, 93 L. Ed. 2d 364 (1986). Habitual criminal information does not charge a new offense. — Defendant was not denied due process where, at defendant's sentencing for robbery, the state filed a supplemental habitual offender information charging defendant with a conviction for a petty larceny offense that had occurred more than three years prior to the sentencing for the robbery conviction. Martinez v. Romero, 626 F.2d 807 (10th Cir. 1980) (Decided under former law). Prosecutorial discretion. — A certain measure of discretion is inevitable in the performance of the prosecutorial function and the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Martinez v. Romero, 626 F.2d 807 (10th Cir. 1980). When sentence completely served, enhancement improper. — Double jeopardy considerations preclude the enhancement of a defendant's sentence after the defendant has completely served that underlying sentence, no matter when the habitual proceedings were initiated. State v. Gaddy, 1990-NMCA-055, 110 N.M. 120, 792 P.2d 1163. Jurisdiction to enhance sentence prior to expiration of parole. — A parole term is part of a sentence for purposes of a court's sentencing authority; thus, since the defendant had completely served an underlying sentence as of the date of an underlying enhancement proceeding but was still subject to a mandatory one-year parole, the trial court had jurisdiction to enhance his sentence as an habitual offender. State v. Roybal, 1995-NMCA-097, 120 N.M. 507, 903 P.2d 249, cert. denied, 120 N.M. 498, 903 P.2d 240. Not cruel and unusual punishment. — Although the New Mexico supreme court has held that habitual criminality is a status rather than an offense, the defendant was not convicted of being an habitual criminal but of the commission of a criminal act; he was, therefore, appropriately punished for the commission of that crime by a substituted enhanced sentence as prescribed by statute, and his punishment was not cruel and unusual punishment. State v. Gonzales, 1972-NMCA-130, 84 N.M. 275, 502 P.2d 300, cert. denied, 84 N.M. 271, 502 P.2d 296. Specific term may be cruel and unusual punishment. — In extremely limited circumstances, a trial court may determine that a mandatory prison term is constitutionally impermissible under U.S. Const., amend. VIII, and N.M. Const., art. II, § 13. State v. Arrington, 1993-NMCA-055, 115 N.M. 559, 855 P.2d 133. Mandatory incarceration which would have been life-threatening to defendant because her serious medical needs would not have been handled adequately under customary prison practices and because there was no showing that the prison would make special provisions for defendant would have constituted cruel and unusual punishment, allowing the trial court to order defendant to serve the unsuspended portion of her sentence in the custody of her parents. State v. Arrington, 1993-NMCA-055, 115 N.M. 559, 855 P.2d 133. Uneven enforcement in actual practice does not make statute unconstitutional. — That there may, in actual practice, be uneven enforcement of the habitual offender statute does not make the law unconstitutional. State v. Sedillo, 1971-NMCA-003, 82 N.M. 287, 480 P.2d 401. The allegation of a "consistent and invariable administrative practice," in not enforcing the law with respect to habitual offenders uniformly, does not bring a case within the purview of the equal protection clause of the constitution. State v. Baldonado, 1968-NMCA-025, 79 N.M. 175, 441 P.2d 215. Construction of the phrase "substantial and compelling". — A district court's justification for permitting a defendant to avoid an otherwise mandatory sentence of imprisonment must be weighty, and not ethereal, in order to be "substantial," and whether reasons are "compelling" depend upon the overall facts of a given case, including the particular criminal behavior the prosecution is designed to address, the history of a given defendant's efforts to comply with what is required of him or her in a law-abiding society, and the court's considerations of the factors in the defendant's life that lend themselves to a possibility of successful rehabilitation in a non-incarcerative environment. State v. Lindsey, 2017-NMCA-048. Court did not abuse its discretion in determining that there were substantial and compelling reasons for suspending defendant's sentence. — Where defendant pled no contest to residential burglary and larceny, and where the district court imposed a five-year sentence of imprisonment, which included two mandatory one-year habitual offender enhancements, the district court did not abuse its discretion in determining that there were substantial and compelling reasons to suspend the mandatory habitual offender portion of defendant's sentence where evidence was presented that defendant had obtained steady employment, which would enable him to pay restitution according to the terms of his prior probation, that defendant was doing well on probation, as reported by his probation officer, and that defendant had demonstrated the existence of a supportive family and his commitment to it. State v. Lindsey, 2017-NMCA-048. Terms of habitual offender statute are mandatory, and a district attorney or judge, or both, may not nullify the statutes by ignoring them. State v. McCraw, 1955-NMSC-050, 59 N.M. 348, 284 P.2d 670. Mandatory provisions. — The provisions of the Habitual Offender Act are mandatory. State v. Davis, 1986-NMSC-031, 104 N.M. 229, 719 P.2d 807. Act must be interpreted narrowly. — The habitual offender statute is highly penal in nature, and its application must be interpreted narrowly. State v. Lujan, 1966-NMSC-051, 76 N.M. 111, 412 P.2d 405. Habitual criminality is a status, not an offense. State v. Cruz, 1971-NMCA-047, 82 N.M. 522, 484 P.2d 364, cert. denied, 92 N.M. 180, 585 P.2d 324 (1978). This section creates no new offense, but merely provides a proceeding by which to determine the penalty to be imposed on one previously convicted in New Mexico of a felony. Lott v. Cox, 1966-NMSC-038, 76 N.M. 76, 412 P.2d 249. Increase in penalty not creation of new offense. — The habitual offender statute does not make the conviction of prior felonies the subject of punishment, as such, as a separate offense. It only provides that proof of the conviction of prior felonies increases the penalty to be imposed upon conviction of a subsequent felony in New Mexico. The amount by which such penalty is required to be increased depends upon the number of prior convictions. French v. Cox, 1964-NMSC-236, 74 N.M. 593, 396 P.2d 423. The filing of habitual criminal information does not create a new criminal case nor constitute a separate offense. Proof of the conviction of prior felonies merely increases the penalty to be imposed upon conviction of a subsequent felony. Martinez v. Romero, 626 F.2d 807 (10th Cir.), cert. denied, 449 U.S. 1019, 101 S. Ct. 585, 66 L. Ed. 2d 481 (1980). Filing of habitual criminal information does not create new criminal case nor constitute a separate offense. Proof of the conviction of prior felonies merely increases the penalty to be imposed upon conviction of a subsequent felony in New Mexico. State v. Knight, 1965-NMSC-058, 75 N.M. 197, 402 P.2d 380. Federal felony convictions arising from the same transaction. — Where defendant was convicted of possession of a firearm by a felon in violation of Section 31-18-17 NMSA 1978; defendant had a prior 2005 state felony conviction; and defendant had been convicted in 1991 of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841, and carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1), the district court did not err when it used one federal felony conviction to form the predicate felony for the felon in possession charge and the other federal conviction and the 2005 state felony conviction to form the basis for enhancement because the federal felony convictions were separate and distinct felony offenses. State v. May, 2010-NMCA-071, 148 N.M. 854, 242 P.3d 421, cert. denied, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180. II. PRIOR FELONY CONVICTION.Federal felony convictions arising from the same transaction. — Where defendant was convicted of possession of a firearm by a felon in violation of Section 31-18-17 NMSA 1978; defendant had a prior 2005 state felony conviction; and defendant had been convicted in 1991 of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841, and carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1), the district court did not err when it used one federal felony conviction to form the predicate felony for the felon in possession charge and the other federal conviction and the 2005 state felony conviction to form the basis for enhancement because the federal felony convictions were separate and distinct felony offenses. State v. May, 2010-NMCA-071, 148 N.M. 854, 242 P.3d 421, cert. denied, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180. Sufficient evidence of prior conviction. — Where a Texas judgment and sentence report had no birth date, no social security number, no identifying information about the convicted person and stated only that the convicted person's name was "Jesse Charles Clements", as opposed to "Jesse Clements", as defendant was know in defendant's New Mexico convictions, the report was insufficient to identify defendant as the convicted person. State v. Clements, 2009-NMCA-085, 146 N.M. 745, 215 P.3d 54, cert. denied, 2009-NMCERT-007, 147 N.M. 362, 223 P.3d 359. Sufficient evidence to prove defendant was the person convicted of prior felonies. — Following defendant's conviction for battery on a peace officer, where the district court admitted certified copies of three fingerprint cards, which corresponded to arrests in 2004, 2008, and 2011 and which contained defendant's name, birth date, and social security number, and where the district court also admitted certified copies of judgment and sentencing documents, which indicated that defendant had qualifying convictions, and took judicial notice of a defendant's current conviction, the admitted evidence was sufficient to support a finding that defendant was a habitual offender. State v. Salas, 2017-NMCA-057, cert. denied. Minor discrepancies in documents used to prove prior conviction. — Minor discrepancies in copies of the judgment and sentence used to prove an earlier felony conviction do not require a finding of insufficiency of the evidence when the fact of the earlier conviction is not otherwise contested. State v. Bailey, 2008-NMCA-084, 144 N.M. 279, 186 P.3d 908, cert. denied, 2008-NMCERT-005, 144 N.M. 331, 187 P.3d 677. A prior out-of-state misdemeanor conviction may be used for the purposes of sentence enhancement when the conviction was either punishable by a maximum of more than one year imprisonment in the state in which it was committed or classified as a felony in New Mexico at the time of conviction. State v. Young, 2007-NMSC-058, 143 N.M. 1, 172 P.3d 138. Prior out-of-state misdemeanor convictions can be used to enhance a sentence if the offense was either punishable by a maximum of more than one year imprisonment in the state in which it was committed or would have been classified as a felony in New Mexico at the time of conviction. State v. Moya, 2007-NMSC-027, 141 N.M. 817, 161 P.3d 862, overruling State v. Moya, 2006-NMCA-103, 140 N.M. 275, 142 P.3d 43. Mistaken identity. — Where the district court inadvertently relied, in part, on the criminal record of defendant's brother to enhance defendant's sentence, the enhancement of defendant's sentence was not supported by substantial evidence. State v. Contreras, 2007-NMCA-045, 141 N.M. 434, 156 P.3d 725, cert. quashed, 2007-NMCERT-011, 143 N.MN. 157, 173 P.3d 764. Consecutive sentences. — Where defendant was sentenced to serve consecutive sentences on two underlying felonies, defendant has a reasonable expectation of finality in the sentence imposed for each underlying felony and when defendant completed serving his sentence on the first felony, that sentence was not subject to being enhanced, although defendant remained incarcerated on the second felony. State v. Lovato, 2007-NMCA-049, 141 N.M. 508, 157 P.3d 73, cert. denied, 2007-NMCERT-004, 141 N.M. 568, 158 P.3d 458. Plea agreement silent on enhancement. — Where defendant's plea agreement was silent on the issue of habitual-offender proceedings and notwithstanding numerous opportunities to do so, defendant failed to object to being charged as a habitual offender, the evidence showed that defendant never had any expectation of finality in his original sentence that was imposed pursuant to the plea agreement and defendant's enhanced sentence did not violate defendant's double jeopardy rights. State v. Trujillo, 2007-NMSC-017, 141 N.M. 451, 157 P.3d 16. Discretion of district court. — In 2002, the legislature amended this section to allow the district court some discretion in imposing the habitual enhancement to cases in which there is one prior felony conviction. State v. Shay, 2004-NMCA-077, 136 N.M. 8, 94 P.3d 8, cert. quashed, 2005-NMCERT-002, 137 N.M. 266, 110 P.3d 74. Legislature limited definition of "prior felony conviction" in its 2003 amendment to the habitual offender statute. State v. Shay, 2004-NMCA-077, 136 N.M. 8, 94 P.3d 8, cert. quashed, 2005-NMCERT-002, 137 N.M. 266, 110 P.3d 74. Applying 12-2A-16C NMSA 1978 to the 2002 amendment to this section, the 2002 amendment effectively reduces the potential enhanced penalties for violating felony statutes by narrowing the definition of "prior felony conviction". State v. Shay, 2004-NMCA-077, 136 N.M. 8, 94 P.3d 8, cert. quashed, 2005-NMCERT-002, 137 N.M. 266, 110 P.3d 74. Prior conviction must be separate transaction. — Each prior felony conviction must be part of a "separate transaction or occurrence". State v. Peppers, 1990-NMCA-057, 110 N.M. 393, 796 P.2d 614, 110 N.M. 260, 794 P.2d 734. Meaning of "convicted". — "Convicted", as ordinarily used in legal phraseology as indicating a particular phase of a criminal prosecution, includes the establishing of guilt whether by accused's admission in open court by plea of guilty to the charges presented, or by a verdict or finding of a court or jury. State v. Larranaga, 1967-NMSC-047, 77 N.M. 528, 424 P.2d 804. A plea of guilty constituted a legal conviction within the meaning of this section, even though the plea had not been reduced to a written judgment and sentence at the time the subsequent offense was committed. State v. Castillo, 1987-NMCA-036, 105 N.M. 623, 735 P.2d 540, cert. denied, 105 N.M. 618, 735 P.2d 535. If defendant pleads guilty in criminal proceeding in another state where no adjudication of guilt entered, and if the courts of that state did not consider such an action to be a "conviction", then that proceeding may not be considered a conviction for the purposes of the Habitual Offender Act. State v. Burk, 1984-NMCA-043, 101 N.M. 263, 680 P.2d 980. "Conviction" does not include imposition of sentence. — The "conviction" to which the habitual offender statute refers is simply a finding of guilt and does not include the imposition of a sentence. State v. Larranaga, 1967-NMSC-047, 77 N.M. 528, 424 P.2d 804. The habitual offender statute did not make imposition of sentence upon the previous convictions a prerequisite to the enhancement of punishment upon the fourth conviction. The conviction is the finding of guilt. Sentence is not an element of the conviction but rather a declaration of its consequences. State v. Larranaga, 1967-NMSC-047, 77 N.M. 528, 424 P.2d 804. Deferred sentence for previous conviction of no consequence. — Habitual offender proceedings are based by statute on prior felony convictions. Since it is not necessary to impose sentence in order to constitute a violation, a deferred sentence for a previous conviction is of no consequence. Padilla v. State, 1977-NMSC-063, 90 N.M. 664, 568 P.2d 190. A criminal sentence that was originally deferred may be enhanced in a later habitual offender proceeding. State v. Davis, 1986-NMSC-031, 104 N.M. 229, 719 P.2d 807. Conviction, not sentence, is polestar. — For purposes of enhancement "conviction" is the polestar, not the sentence imposed. State v. Davis, 1986-NMSC-031, 104 N.M. 229, 719 P.2d 807. Section contemplates valid convictions which have not been vacated. State v. Moser, 1967-NMSC-163, 78 N.M. 212, 430 P.2d 106, overruled on other grounds by State v. Orona, 1982-NMSC-002, 97 N.M. 232, 638 P.2d 1077. Probation violation is not a crime and does not trigger an enhancement as a habitual offender. State v. Ortega, 2004-NMCA-080, 135 N.M. 737, 93 P.3d 758, cert. denied, 2004-NMCERT-006, 135 N.M. 788, 93 P.3d 1292. Question of constitutionality of prior trial and conviction may be raised. — Question of the adequacy of representation so as to meet the requirements of due process in a prior trial and conviction in another state may be raised as an issue under the habitual criminal statute. State v. Dalrymple, 1965-NMSC-124, 75 N.M. 514, 407 P.2d 356. Uncounseled convictions. — A prior uncounseled misdemeanor conviction can be used to enhance a subsequent conviction if the prior conviction did not result in a sentence of imprisonment or, if it did result in a sentence of imprisonment, the right to counsel had been validly waived. State v. Hosteen, 1997-NMSC-063, 124 N.M. 402, 951 P.2d 619. Defendant's assertion that two prior felony convictions could not be used against him in prosecution under habitual criminal statute because they were constitutionally defective due to the absence of counsel at his preliminary examination in both convictions was without merit where the record showed that in each of the two prior felony convictions defendant entered pleas of guilty, that in each of the guilty pleas defendant had the advice of counsel, and no claim was made that the pleas were involuntary, defendant's claimed defect was waived when he pleaded guilty in the two prior felony proceedings. State v. Lopez, 1973-NMCA-014, 84 N.M. 600, 506 P.2d 344. Prior conviction, not prior sentence, is dispositive for repeat offender status. — Where defendant was convicted of drug charges in New Mexico; the New Mexico court deferred defendant's sentence for a two-year probationary period; the deferred sentence was a final judgment subject to appeal; and after defendant successfully completed the probation, defendant was entitled to have the New Mexico charges dismissed, the deferred sentence was a prior conviction for purposes of sentence enhancement. United States v. Meraz, 998 F.2d 182 (10th Cir. 1993). Collateral attack on prior conviction. — A defendant may collaterally attack the validity of a prior conviction where the state seeks to utilize the prior conviction as a basis for sentence enhancement under this section. State v. Valdez, 1988-NMCA-074, 107 N.M. 642, 763 P.2d 76. Double use of prior felony. — Where the defendants were convicted of the charge of felon in possession of a firearm contrary to Section 30-7-16 NMSA 1978, and the defendants were also sentenced as habitual offenders in accordance with this section, the trial court erred in sentencing the defendants as habitual offenders when the same prior felony convictions were relied upon to convict the defendants of the underlying offense of felon in possession of a firearm. State v. Haddenham, 1990-NMCA-048, 110 N.M. 149, 793 P.2d 279, cert. denied, 110 N.M. 183, 793 P.2d 865. If a prior felony conviction is already taken into account in determining the punishment for the specific crime, the legislature did not intend that prior felony conviction also to be used in establishing that defendant was a habitual offender. State v. Peppers, 1990-NMCA-057, 110 N.M. 393, 796 P.2d 614, cert. denied, 110 N.M. 260, 794 P.2d 734. Where defendant's prior convictions for cocaine trafficking and possession of marijuana with intent to distribute resulted from a single arrest, the court did not make an impermissible "double use" of the prior convictions by utilizing the prior cocaine trafficking conviction to enhance the defendant's present cocaine trafficking conviction to a first degree felony pursuant to Section 30-31-20B(2) NMSA 1978, and then using the other prior conviction for possession of marijuana to enhance defendant's sentence under the general habitual-offender statute, Section 31-18-17C NMSA 1978. State v. Hubbard, 1992-NMCA-014, 113 N.M. 538, 828 P.2d 971, cert. denied, 113 N.M. 352, 826 P.2d 573. Where a trial court convicted defendant of one count of a second offense of trafficking a controlled substance and one count of conspiracy to commit that offense, and in sentencing defendant, the trial court used defendant's prior convictions twice to increase the punishment, the prior trafficking conviction could not be used to set defendant's underlying conspiracy to commit trafficking conviction as a second degree felony, and then be used to enhance defendant's sentence under the habitual offender statute. State v. Lacey, 2002-NMCA-032, 131 N.M. 684, 41 P.3d 952, cert. denied, 131 N.M. 737, 42 P.3d 842. Proper reading of Subsection D(2). — Under the definition of "prior felony conviction", a prior felony conviction requires conformance with the provisions of Subsection A(2)(a) and (b) (now D(2)(a) and (b)) or conformance with Subsection A(2)(a) and (c) (now D(2)(a) and (c)) and should be read as though the word "and" was inserted between subparagraphs (a) and (b) of Subsection A(2) (now D(2)). State v. Harris, 1984-NMCA-003, 101 N.M. 12, 677 P.2d 625. Habitual criminal status not conviction, but 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). A habitual offender proceeding is a sentencing procedure and not a trial of an offense. Perez v. Sullivan, 793 F.2d 249 (10th Cir.), cert. denied, 479 U.S. 936, 107 S. Ct. 413, 93 L. Ed. 2d 364 (1986). Habitual offender sentence of five-time shoplifting felon proper. — A sentence of eight years' imprisonment, imposed under the habitual offender statute against a defendant convicted for the fifth time on felony shoplifting charges, was not so disproportionate as to require reversal as cruel and unusual punishment under the New Mexico Constitution, notwithstanding facts that three of the convictions were over 15 years old, and the latest charge was only $3 over the minimum threshold for felony shoplifting. State v. Rueda, 1999-NMCA-033, 126 N.M. 738, 975 P.2d 351, cert. denied, 127 N.M. 391, 981 P.2d 1209. Felony must be committed subsequent to prior conviction. — The felony for which a defendant is being punished must be one committed subsequent to the dates of the convictions relied on to effect an increase of the penalty. State v. Linam, 1979-NMSC-004, 93 N.M. 307, 600 P.2d 253, cert. denied, 444 U.S. 846, 100 S. Ct. 91, 62 L. Ed. 2d 59 (1979). The repeal of former Section 31-18-5 NMSA 1978 and the enactment of this section do not affect the holding in State v. Linam, 1979-NMSC-004, 93 N.M. 307, 600 P.2d 253, cert. denied, 444 U.S. 846, 100 S. Ct. 91, 62 L. Ed. 2d 59, that, for purposes of an enhanced sentence, the felony for which a defendant is being sentenced must have been committed after conviction for a preceding felony. Hernandez v. State, 1981-NMSC-091, 96 N.M. 585, 633 P.2d 693. 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). Sentence for each of multiple current convictions to be enhanced. — The reference to "a" felony in this section does not change the requirement that the sentence for each of multiple current felony convictions be enhanced. State v. Harris, 1984-NMCA-003, 101 N.M. 12, 677 P.2d 625. Basic sentence. — In choosing the term "basic sentence" the legislature referred to the sentence to be enhanced. If a person with a prior felony conviction is convicted of multiple felonies, then there are several basic sentences. Thus, there may be multiple enhancements. State v. Howard, 1989-NMCA-029, 108 N.M. 560, 775 P.2d 762, cert. denied, 108 N.M. 433, 773 P.2d 1240. Supplemental recidivist information not duplicitous. — A supplemental information which gave defendant notice that his three prior felony convictions would provide the basis for enhancing his sentence was not a joinder of offenses and, therefore, not void for duplicity. State v. Harris, 1984-NMCA-003, 101 N.M. 12, 677 P.2d 625. Sentences served concurrently unless trial court or legislature requires consecutive sentences. — The trial court has discretion to require sentences to be served consecutively, but if this is not done, and there is no legislation covering the situation, the sentences are to be served concurrently. State v. Mayberry, 1982-NMCA-061, 97 N.M. 760, 643 P.2d 629. The district court has discretion to order that enhanced sentences for multiple offenses be served concurrently. State v. Triggs, 2012-NMCA-068, 281 P.3d 1256. Enhanced sentences for multiple offenses may be served concurrently. — Pursuant to defendant's plea agreement, defendant was convicted of nine property offenses and received basic sentences that ran consecutively, two of the sentences were enhanced based on two prior felony convictions; defendant agreed that the remaining sentences would be subject to habitual offender enhancement upon a violation of law or a violation of a condition of parole or probation; defendant violated the conditions of parole for one of the offenses that had been fully enhanced under the plea agreement; the district court found that defendant was an habitual offender and enhanced each of the seven sentences that had not been enhanced under the plea agreement; and there was nothing in the plea agreement that required the district court to run the enhancements consecutively, the district court had the discretion to order that the enhanced sentences be served concurrently. State v. Triggs, 2012-NMCA-068, 281 P.3d 1256. Sentences under multiple enhancement provisions. — It is not improper to enhance a sentence under the general habitual offender statute if it has already been enhanced under the firearm enhancement statute. State v. Reaves, 1982-NMCA-169, 99 N.M. 73, 653 P.2d 904. The state was not prevented from using distinct felonies obtained in the same judgment and sentence for the separate purposes of enhancement under the felon in possession statute and the general habitual offender statute. State v. Calvillo, 1991-NMCA-038, 112 N.M. 140, 812 P.2d 794, cert. denied, 112 N.M. 77, 811 P.2d 575. Prior fourth-degree-felony DWI conviction, pursuant to Subsection G of Section 66-8-102 NMSA 1978, could not be used to enhance the sentences, pursuant to this section, of defendants convicted of a non-DWI felony. State v. Begay, 2001-NMSC-002, 130 N.M. 61, 17 P.3d 434. Defendants convicted of the offense of felony DWI under Subsection G of Section 66-8-102 NMSA 1978 are not subject to sentence enhancement under both the felony DWI provision and this section. State v. Anaya, 1997-NMSC-010, 123 N.M. 14, 933 P.2d 223; State v. Gonzales, 1997-NMSC-050, 124 N.M. 171, 947 P.2d 128. A prior armed robbery conviction may not be considered for enhancement under both the armed robbery statute and the habitual offender provision; accordingly, in the case of a defendant who has one prior burglary, one prior armed robbery, and one current armed robbery, the sentence for the current offense, discounting any reduction for mitigating circumstances, should be that for a second armed robbery, under Section 30-16-2 NMSA 1978, plus a one-year enhancement for the prior burglary under the habitual offender provisions. State v. Keith, 1985-NMCA-012, 102 N.M. 462, 697 P.2d 145, cert. denied, 102 N.M. 492, 697 P.2d 492. Sentences cannot be served concurrently. — An additional one-year sentence for the use of a firearm and an additional one-year sentence as an habitual offender cannot be served concurrently. State v. Mayberry, 1982-NMCA-061, 97 N.M. 760, 643 P.2d 629. Proper to enhance failure-to-appear charge. — Defendant's conviction for vehicular homicide could be used to enhance his failure-to-appear sentence, because the two acts - failure to appear at sentencing and vehicular homicide - were far from contemporaneous, and the state did not have to prove vehicular homicide as an element of the failure-to-appear offense. State v. Peppers, 1990-NMCA-057, 110 N.M. 393, 796 P.2d 614, cert. denied, 110 N.M. 260, 794 P.2d 734. Multiple convictions at one trial. — Where a conviction on two or more counts arising out of acts committed in the course of a single transaction has been entered, the convictions should count as one for the purpose of sentencing under an habitual offender statute. On the other hand, where multiple convictions are obtained for crimes unrelated to one another, no prohibition has been found to prevent counting each conviction separately in habitual offender proceedings. State v. Sanchez, 1975-NMCA-014, 87 N.M. 256, 531 P.2d 1229. If, under this section, multiple prior convictions arose out of a unified course of events, the multiple convictions count as one conviction in the habitual offender proceedings; but, if the defendant had a prior felony conviction, the trial court could properly enhance each of three subsequent felony convictions as a second felony conviction. State v. Baker, 1977-NMCA-033, 90 N.M. 291, 562 P.2d 1145. Nature of punishment of prior conviction. — Where 17-year-old defendant was convicted in South Carolina of burglary and larceny, because the court found him amenable to treatment and placed him on probation as a "youthful offender" whose sentence was rehabilitative in nature his prior conviction did not satisfy the provisions of this section. State v. Smith, 2000-NMCA-101, 129 N.M. 738, 13 P.3d 470. Conviction in another state. — Defendant's conviction by a Texas court constituted a "prior felony conviction" for purposes of the New Mexico habitual-offender statute, even though defendant had been placed on probation after his conviction, the indictment was set aside by a Texas court after completion of probation, and the conviction could not be considered under the Texas habitual-offender statute. State v. Edmondson, 1991-NMCA-069, 112 N.M. 654, 818 P.2d 855, cert. quashed, 112 N.M. 641, 818 P.2d 419. Where, contrary to defendant's assertion, the evidence does not indicate that Section 18-4-502, Colorado Statutes, was not a felony in Colorado either at the time defendant committed the offense or at the time of his conviction, Colorado conviction was a felony covered by this section. State v. Sandoval, 2004-NMCA-046, 135 N.M. 420, 89 P.3d 92, cert. denied, 2004-NMCERT-006, 135 N.M. 789, 93 P.3d 1292. Use of prior conviction that is not felony offense in New Mexico. — Whether or not the Colorado felony is a felony in New Mexico, the felony conviction may be used if it was punishable by imprisonment of more than one year. State v. Wilson, 1993-NMCA-074, 117 N.M. 11, 868 P.2d 656, cert. quashed, 119 N.M. 311, 889 P.2d 1233 (1995). Prior convictions which are not felonies under laws of New Mexico will not support increased penalty for a felony conviction in New Mexico. State v. Knight, 1965-NMSC-058, 75 N.M. 197, 402 P.2d 380; State v. Silas, 1979-NMSC-008, 92 N.M. 434, 589 P.2d 674; State v. Montoya, 1979-NMCA-044, 92 N.M. 734, 594 P.2d 1190, aff'd, 1980-NMSC-093, 94 N.M. 704, 616 P.2d 417. Prior federal felony convictions. — Where prior federal convictions for transporting stolen automobiles across state lines were not felonies in New Mexico, an increased penalty for a forgery felony conviction in New Mexico as a habitual criminal is improper. State v. Knight, 1965-NMSC-058, 75 N.M. 197, 402 P.2d 380. Presumption as to law of sister state. — When previous conviction is charged to be an offense which is designated by name by the law of New Mexico as one falling within the required category, it is presumed that the conviction in the other state carried with it all the essentials of the crime in New Mexico, as the law of a sister state is presumed to be the same as that of the forum, absent proof to the contrary. State v. Lott, 1963-NMSC-219, 73 N.M. 280, 387 P.2d 855. Prior felony need not be such on date of prosecution as habitual criminal. — The habitual offender statute contains no provision requiring the prior felony to be such an offense on the date of subsequent prosecution as an habitual criminal. The date of the conviction in the foreign state is the time to be considered in determining whether the offense charged as the prior conviction would have been a felony in this state. State v. Lott, 1963-NMSC-219, 73 N.M. 280, 387 P.2d 855. Amendment or repeal of statute subsequent to conviction under it. — If defendant's violation of a statute was a felony at the time, changes in or repeal of the statute subsequent to that time do not preclude the use of that conviction in prosecutions under the habitual offender statute. State v. Darrah, 1966-NMSC-171, 76 N.M. 671, 417 P.2d 805. Effect of executive pardon. — An executive pardon of the offense which provokes the court into imposing a life sentence under the habitual offender statute is unavailing to deny the court authority to employ the same felony convictions again for purpose of imposing a sentence under the habitual offender statute, if subsequent to his pardon the prisoner commits another felony. Shankle v. Woodruff, 1958-NMSC-054, 64 N.M. 88, 324 P.2d 1017. Effect of pardoned offenses. — The governor has the power to pardon habitual offender sentences, but the pardoned offense may nevertheless be used to enhance future sentences for future crimes. State v. Mondragon, 1988-NMCA-027, 107 N.M. 421, 759 P.2d 1003, cert. denied, 107 N.M. 267,. 755 P.2d 605. "Purchase" of heroin is felony for purposes of section. — Where a federal conviction is had in New Mexico upon a purchase of heroin in New Mexico, the "purchase" of heroin necessarily includes the actual or constructive "possession" of heroin, and actual or constructive possession of heroin is a felony under the laws of New Mexico for purposes of this section. State v. Montoya, 1980-NMSC-093, 94 N.M. 704, 616 P.2d 417. Effect of additional convictions on habitual offender statute. — Prosecution under the habitual offender statute is not barred upon any conviction in addition to fourth felony conviction, and such additional conviction may be prosecuted for the purpose of enhancing sentence at any time, otherwise lawful, as if it were the fourth felony conviction. State v. Sanchez, 1975-NMCA-014, 87 N.M. 256, 531 P.2d 1229. Alternative methods of showing prior convictions. — If a state adopts the policy of imposing heavier punishment for repeated offending, there is manifest propriety in guarding against the escape from this penalty of those whose previous conviction was not suitably made known to the court at the time of their trial. It is to prevent such a frustration of its policy that provision is made for alternative methods, either by alleging the fact of prior conviction in the indictment and showing it upon the trial, or by a subsequent proceeding in which the identity of the prisoner may be ascertained and he may be sentenced to the full punishment fixed by law. State v. Gonzales, 1972-NMCA-130, 84 N.M. 275, 502 P.2d 300, cert. denied, 84 N.M. 271, 502 P.2d 296. Enhanced sentence may be imposed though maximum for felony served. — Under this section, imposition of enhanced sentence was proper even though maximum sentence for felony conviction which had given rise to it had been completely served. Lott v. Cox, 1966-NMSC-038, 76 N.M. 76, 412 P.2d 249. Nolo contendere plea as basis for conviction. — A plea of nolo contendere, accepted and recorded in open court, may provide a proper sentence for conviction which may be used to enhance a sentence under this habitual criminal statute. State v. Marquez, 1986-NMCA-119, 105 N.M. 269, 731 P.2d 965, cert. denied, 105 N.M. 211, 730 P.2d 1193. Chronologically, factually separate felonies properly used for enhancement. — Since the facts and elements of defendant's 1986 predicate felony of receiving stolen property and his 1988 felony conviction for felon in possession of a firearm were both separate in time and involved different facts from those underlying his felony convictions in the case under adjudication, they were properly used as separate felonies for purposes of enhancing defendant's later felony convictions under this section. State v. Yparrea, 1992-NMCA-128, 114 N.M. 805, 845 P.2d 1259, cert. denied, 114 N.M. 720, 845 P.2d 814 (1993). Federal conviction as prior conviction. — For a federal conviction to be considered as a prior conviction under the habitual offender statute, the conviction must be for a crime which if committed within this state would be a felony. State v. Garcia, 1978-NMCA-109, 92 N.M. 730, 594 P.2d 1186, cert. denied, 92 N.M. 532, 591 P.2d 286; State v. Montoya, 1979-NMCA-044, 92 N.M. 734, 594 P.2d 1190, aff'd, 1980-NMSC-093, 94 N.M. 704, 616 P.2d 417. III. PROCEDURAL MATTERS.The state is not required to make a prima facie showing of defendant's past convictions before the sentencing hearing. State v. Godoy, 2012-NMCA-084, 284 P.3d 410, cert. denied, 2012-NMCERT-007. Where, eight days after defendant was convicted of possession of cocaine, the state filed a supplemental information alleging that defendant was a habitual offender subject to sentence enhancement; four days later, the state served notice of intent to seek an enhanced sentence and demanded that defendant give notice of defendant's intention to challenge the validity of any prior convictions; defendant did not file a notice that defendant would challenge the validity of prior convictions; at the arraignment on the supplemental information, defense counsel denied the allegations of the previous convictions and told the court that there would be issues with some of the alleged convictions; at the sentencing hearing, the state presented authenticated copies of the previous convictions; defendant did not contest the convictions; and defendant claimed that the trial court filed to provide defendant with adequate process because the state failed to make a prima facie showing of defendant's prior convictions before the sentencing hearing and that defendant did not have a fair opportunity at the sentencing hearing to review and rebut the evidence of the prior convictions, the enhancement of defendant's sentence complied with statutory requirements and was proper because the state provided adequate notice to defendant of its intent and then proved the existence of the prior convictions by a preponderance of the evidence at the sentencing hearing. State v. Godoy, 2012-NMCA-084, 284 P.3d 410, cert. denied, 2012-NMCERT-007. Violation of plea and disposition agreement. — Where the defendant entered into a plea and disposition agreement in which the state agreed not to bring habitual offender proceedings "if and only if" the defendant completed at least one year of inpatient alcohol treatment and successfully completed probation without a violation; the defendant violated probation one month after beginning to serve probation and knowingly and voluntarily admitted to the probation violation; the state did not bring habitual offender proceedings based on the probation violation and the district court placed the defendant on a second probation; the defendant violated probation a second time; and the state initiated habitual offender proceedings before the district court held a hearing on the second violation of probation, the district court was authorized to enhance the defendant's sentence. State v. Leyba, 2009-NMCA-030, 145 N.M. 712, 204 P.3d 37, cert. denied, 2009-NMCERT-002, 145 N.M. 704, 204 P.3d 29. New rule setting order of proof to operate prospectively only. — The new rule of law in State v. Linam, 1979-NMSC-004, 93 N.M. 307, 600 P.2d 253, decided on January 11, 1979, setting forth the order of proof required in habitual offender sentencing, was intended to operate prospectively only. State v. Valenzuela, 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. 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. State required to prove specific sequence of commissions and convictions. — In order to justify imposition of the enhanced sentence the state is required to prove a specific sequence of "commissions" and "convictions." 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. Unless waived by the terms of the plea agreement. — Defendant waived his right to contest the evidence of the prior convictions by agreeing to the terms of the plea agreement. State v. Sanchez, 2001-NMCA-060, 130 N.M. 602, 28 P.3d 1143, cert denied, 130 N.M. 713, 30 P.3d 1147. Date of commission of offense essential element in prosecution. — To establish the date of the commission of the offense giving rise to the habitual offender proceeding is an essential element in such a prosecution. 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. Where there is no proof as to the date of commission of the second felony by defendant, an enhanced habitual offender sentence cannot stand. State v. Valenzuela, 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. Defendant's introduction to jury does not interfere with its duty of determining identity. — The introduction of the defendant to the jury by his name in no way interferes with the jury's duty of determining whether the named and identified defendant is the same person who was convicted of the crimes for which he is being charged in the supplemental information. State v. Olivares, 1980-NMCA-165, 95 N.M. 222, 620 P.2d 380. An unrelated plea agreement containing an admission of the defendant's identity in prior convictions was admissible for purposes of a habitual offender proceeding. State v. Roybal, 1995-NMCA-097, 120 N.M. 507, 903 P.2d 249, cert. denied, 120 N.M. 498, 903 P.2d 240. 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 prior guilty plea was invalid, the state makes a prima facie case establishing a valid guilty plea upon proof that the defendant has been convicted of a crime. State v. Garcia, 1980-NMSC-132, 95 N.M. 246, 620 P.2d 1271. 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. Conditional discharge used to enhance sentence. — Even though a prior conditional discharge could not be used for enhancement purposes at the time the defendant was originally sentenced, since he had agreed to such use and that he would not challenge it on appeal, the trial court did not err in using the conditional discharge to enhance the defendant's sentence. State v. Handa, 1995-NMCA-042, 120 N.M. 38, 897 P.2d 225, cert. denied, 119 N.M. 771, 895 P.2d 671. Use of the defendant's prior conditional discharge to prove that he was a felon in order to convict him of the crime of felon in possession of a firearm and to enhance his sentence for underlying assault convictions did not violate his double jeopardy rights. State v. Handa, 1995-NMCA-042, 120 N.M. 38, 897 P.2d 225, cert. denied, 119 N.M. 771, 895 P.2d 671. Guilty pleas, disputed by vague evidence, accepted. — Once the state's exhibits establish a prima facie case that a defendant has previously pled guilty to felonies, the defendant is entitled to bring forth contrary evidence, but it is his burden to do so. Based on the defendant's vague and somewhat inconsistent recollections about whether he had the advice of counsel before he pled guilty to previous crimes, the judge did not abuse her discretion in accepting those convictions as the basis for the habitual offender enhancements. State v. Duncan, 1994-NMCA-030, 117 N.M. 407, 872 P.2d 380, cert. denied, 117 N.M. 524, 873 P.2d 270. Asserted invalidity of prior convictions is a defense to the 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. 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. Validity of prior guilty pleas is issue to be decided by court in a 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. 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. Burden not on state when "record is 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. Double jeopardy defense waived by plea agreement. — The defendant waived his double jeopardy defense by entering a plea agreement which provided that the state could pursue additional habitual offender proceedings to enhance the defendant's sentence in the event his probation was revoked or he otherwise failed to fulfill his obligations under the agreement, and Section 30-1-10 NMSA 1978, precluding waiver of a double jeopardy defense, did not apply to prevent waiver in such case. Montoya v. New Mexico, 55 F.3d 1496 (10th Cir. 1995). Sentence enhancement based on violation of plea agreement. — Since the defendant violated the terms of a plea agreement providing that the state could pursue additional habitual offender proceedings to enhance the defendant's sentence in the event his probation was revoked or he otherwise failed to fulfill his obligations under the agreement, the imposition of additional sentence enhancements did not constitute an impermissible multiple punishment. Montoya v. New Mexico, 55 F.3d 1496 (10th Cir. 1995). Since the plea agreement provided that the state would pursue additional enhancement if the defendant violated conditions of his probation, when the defendant violated the probation, additional enhancement was authorized based, not on the probation violation, but on the prior felonies. State v. Freed, 1996-NMCA-044, 121 N.M. 562, 915 P.2d 325, cert. denied, 121 N.M. 644, 916 P.2d 844. Statutory scheme does not delegate legislative responsibility to prosecution. — In no sense does the habitual offender statutory scheme delegate to the prosecution the legislative responsibility to fix criminal penalties. Martinez v. Romero, 626 F.2d 807 (10th Cir.), cert. denied, 449 U.S. 1019, 101 S. Ct. 585, 66 L. Ed. 2d 481 (1980). Subsection B only prohibits suspending or deferring one-year sentence imposed by subsection, and does not affect the trial court's discretion to suspend or defer the basic sentence imposed. State v. Russell, 1980-NMCA-074, 94 N.M. 544, 612 P.2d 1355. Credit for time served. — When the defendant who had served one year of an enhanced sentence was subject to a second four-year enhancement, the court was required to give credit for the time served, and giving credit did not convert the second enhancement into an unauthorized three-year sentence. State v. Freed, 1996-NMCA-044, 121 N.M. 562, 915 P.2d 325, cert. denied, 121 N.M. 644, 916 P.2d 844. Law reviews. — For note, "State v. Muniz: Authorizing Adult Sentencing of Juveniles Absent a Conviction that Authorizes an Adult Sentence," see 35 N.M.L. Rev. 229 (2005). For comment, "Definite Sentencing in New Mexico: The 1977 Criminal Sentencing Act," see 9 N.M.L. Rev. 131 (1978-79). For note, "Negligent Hiring and Retention - Availability of Action Limited By Foreseeability Requirement," see 10 N.M.L. Rev. 491 (1980). 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 12 N.M.L. Rev. 271 (1982). For comment, "The Constitution is Constitutional - A Reply to The Constitutionality of Pretrial Detention Without Bail in New Mexico," see 13 N.M.L. Rev. 145 (1983). For annual survey of New Mexico law relating to criminal law, see 13 N.M.L. Rev. 323 (1983). For annual survey of New Mexico law relating to criminal procedure, see 13 N.M.L. Rev. 341 (1983). For annual survey of New Mexico criminal law, see 16 N.M.L. Rev. 9 (1986). For annual survey of criminal procedure in New Mexico, see 18 N.M.L. Rev. 345 (1988). For annual survey of New Mexico Criminal Procedure, see 20 N.M.L. Rev. 285 (1990). For survey of 1990-91 criminal procedure and evidence, see 22 N.M.L. Rev. 713 (1992). Am. Jur. 2d, A.L.R. and C.J.S. references. — Constitutionality and construction of statute enhanced penalty for second or subsequent offenses, 58 A.L.R. 20, 82 A.L.R. 345, 116 A.L.R. 209, 132 A.L.R. 91, 139 A.L.R. 673. Effect, as to prior offenses, of amendment increasing punishment for crime, 167 A.L.R. 845. What constitutes former "conviction" within statute enhancing penalty for second or subsequent offenses, 5 A.L.R.2d 1080. Propriety, under statute enhancing punishment for second or subsequent offense, of restricting new trial to issue of status as habitual criminal, 79 A.L.R.2d 826. Form and sufficiency of allegations as to time, place, or court of prior offenses or convictions, under habitual criminal act or statute enhancing punishment for repeated offenses, 80 A.L.R.2d 1196. 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. Adequacy of defense counsel's representation of criminal client regarding prior convictions, 14 A.L.R.4th 227. Propriety of using single prior felony conviction as basis for offense of possessing weapon by convicted felon and to enhance sentence, 37 A.L.R.4th 1168. Chronological or procedural sequence of former convictions as affecting enhancement of penalty under habitual offender statutes, 7 A.L.R.5th 263. Use of prior military conviction to establish repeat offender status, 11 A.L.R.5th 218. Imposition of enhanced sentence under recidivist statute as cruel and unusual punishment, 27 A.L.R. Fed. 110.