2023 New Mexico Statutes › Chapter 33 - Correctional Institutions › Article 2 - State Correctional Facilities › Section 33-2-39 - [Separate sentences construed as cumulative.]

Whenever any convict shall have been committed under several convictions with separate sentences, they shall be construed as one continuous sentence for the full length of all the sentences combined.
History:
Laws 1889, ch. 76, § 49; C.L. 1897, § 3538; Code 1915, § 5073; C.S. 1929, § 130-161; 1941 Comp., § 45-159; 1953 Comp., § 42-1-59.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Cross references.
— For rule of construction of statutes prescribing sentences,
see
31-21-1 NMSA 1978.
Applicability of section not limited to "good time" situations.
— The obvious intent of the sections of the 1889 law was to provide for the reduction of a sentence because of "good time." In so providing, § 49, this section, stated that separate sentences were to be construed as one continuous sentence. However, the statute is not limited to "good time" situations; it is general in its effect and applies in considering eligibility for parole under 31-21-10 NMSA 1978.
Deats v. State
, 1972-NMCA-155, 84 N.M. 405, 503 P.2d 1183.
Under section two sentences construed as one.
— Where district court sentenced defendant on each of two convictions of second degree murder, the two sentences were "one continuous sentence."
State v. Miller
, 1968-NMSC-103, 79 N.M. 392, 444 P.2d 577, cert. denied
sub nom. Miller v. Baker
, 394 U.S. 1002, 89 S. Ct. 1597, 22 L. Ed. 2d 779 (1969).
But sentences under separate commitments treated differently.
— This section means that separate sentences under one commitment are to be treated as one continuous sentence, but it does not mean that sentences under separate commitments are to be so treated.
Deats v. State
, 1972-NMCA-155, 84 N.M. 405, 503 P.2d 1183.
For purposes of parole administration only.
— The holding in
Deats v. State
, 1972-NMCA-155, 84 N.M. 405, 503 P.2d 1183, that this section means that separate sentences under one commitment are to be treated as one continuous sentence but that separate sentences under separate commitments are not to be treated as continuous, is limited strictly to purposes of parole administration.
State v. Davis
, 2003-NMSC-022, 134 N.M. 172, 74 P.3d 1064.
Eight sentences construed as one.
— Where a person received eight consecutive sentences each for a term of not less than one nor more than five years, it has been held that the sentence must be considered one continuous sentence of not less than eight nor more than 40 years.
State v. Martinez
, 1978-NMSC-083, 92 N.M. 256, 586 P.2d 1085;
Deats v. State
, 1972-NMCA-155, 84 N.M. 405, 503 P.2d 1183.
Previous sentences served before serving under more recent ones.
— This section applied to the eight consecutive sentences imposed on defendant in 1969 and required that they be considered as one continuous sentence of not less than eight nor more than 40 years for reduction of sentence for good time but previous 1967 sentences must have been served before defendant began serving under the 1969 sentences.
Deats v. State
, 1972-NMCA-155, 84 N.M. 405, 503 P.2d 1183.
Sentence for more than one year in custody of corrections department, not county.
— Defendant whose continuous sentence was for more than one year was properly sentenced to the custody of the corrections department rather than the county jail, as the place of confinement, under 31-19-1 and 31-20-2A NMSA 1978 and this section, depends on the length of confinement.
State v. Musgrave
, 1984-NMCA-127, 102 N.M. 148, 692 P.2d 534.
Recent sentence cannot be made consecutive with prior sentence.
— The sentence in a cause which appellant had begun to serve could not be changed so as to make the service consecutive to that required to be served under the sentence in a previous cause.
State v. Verdugo
, 1969-NMSC-008, 79 N.M. 765, 449 P.2d 781.
Sentence may be amended to shorten but not to augment.
— During the term during which a sentence was imposed, it could be amended so as to shorten it, but not so that the punishment would be augmented.
State v. Verdugo
, 1969-NMSC-008, 79 N.M. 765, 449 P.2d 781.
When two commitments no more than 30 days sentence for fines.
— Inmates at the New Mexico state penitentiary are not required to serve more than 30 days for fines or costs attached to sentences when the inmates are sentenced on two or more commitments. 1959 Op. Att'y Gen. No. 59-31.
Penitentiary must follow requirements of section unless sentence specifies otherwise
by showing its intention that the sentences are each to be served separately, one after the other. 1963 Op. Att'y Gen. No. 63-165.
Maximum and minimum terms cannot be combined.
— Where a judge specifically requires one sentence to be served prior to starting service on another, the maximum and minimum of the specific sentences cannot be combined. Where the sentencing court specifies which sentence is "to be served first" or that one sentence is to "begin after the completion of a previous sentence," it has generally been held that each sentence must be served in order. 1963 Op. Att'y Gen. No. 63-165.
Where a prisoner is given strictly consecutive sentences, each sentence must be construed as a unit and so served; thus the minimum for parole eligibility is the minimum of each sentence taken in order, and the maximum is the maximum of each separate sentence. 1963 Op. Att'y Gen. No. 63-165.
Consequences of alternative construction upon 31-21-11 NMSA 1978.
— If it were mandatory upon a penitentiary to construe cumulative sentences as one continuous sentence, the provisions of 31-21-11 NMSA 1978 would not be effective. 1963 Op. Att'y Gen. No. 63-165.
Minimum terms added to establish when eligible for parole.
— When a person is committed under separate sentences each of which has a minimum term and maximum term, the minimum terms should be added together in establishing the parole hearing eligibility date. 1961 Op. Att'y Gen. No. 61-59; 1963 Op. Att'y Gen. No. 63-165.
Credit not given for time in federal penitentiary.
— A convict who has served time in a federal penitentiary may not be given credit for such time under a different sentence in serving out a New Mexico sentence. 1945 Op. Att'y Gen. No. 45-4792.
When "outside" or "in custody" parole may be given.
— As a practical matter a person committed under two life sentences cannot be granted an "outside" parole until he has served 20 years but he can be granted an "in custody" parole after serving 10 years. 1961 Op. Att'y Gen. No. 61-59.
Law reviews.
— For annual survey of New Mexico criminal procedure, see 16 N.M.L. Rev. 25 (1986).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
21 Am. Jur. 2d Criminal Law §§ 551-556.
Sentences by different courts as concurrent, 57 A.L.R.2d 1410.
Effect of invalidation of sentence upon which separate sentence runs consecutively, 68 A.L.R.2d 712.
24 C.J.S. Criminal Law §§ 1518, 1519, 1521.