2023 New Mexico Statutes › Chapter 31 - Criminal Procedure › Article 18 - Criminal Sentencing › Section 31-18-15 - Sentencing authority; noncapital felonies; basic sentences and fines; parole authority; meritorious deductions.

A. As used in a statute that establishes a noncapital felony, the following defined felony classifications and associated basic sentences of imprisonment are as follows:
FELONY CLASSIFICATION
BASIC SENTENCE
first degree felony resulting in
the death of a child
life imprisonment
first degree felony for aggravated
criminal sexual penetration
life imprisonment
first degree felony
eighteen years imprisonment
second degree felony resulting in
the death of a human being
fifteen years imprisonment
second degree felony for a sexual
offense against a child
fifteen years imprisonment
second degree felony for sexual
exploitation of children
twelve years imprisonment
second degree felony
nine years imprisonment
third degree felony resulting in
the death of a human being
six years imprisonment
third degree felony for a sexual
offense against a child
six years imprisonment
third degree felony for sexual
exploitation of children
eleven years imprisonment
third degree felony
three years imprisonment
fourth degree felony for sexual
exploitation of children
ten years imprisonment
fourth degree felony
eighteen months imprisonment.
B. The appropriate basic sentence of imprisonment shall be imposed upon a person convicted and sentenced pursuant to Subsection A of this section, unless the court alters the sentence pursuant to the provisions of the Criminal Sentencing Act.
C. A period of parole shall be imposed only for felony convictions wherein a person is sentenced to imprisonment of more than one year, unless the parties to a proceeding agree that a period of parole should be imposed. If a period of parole is imposed, the court shall include in the judgment and sentence of each person convicted and sentenced to imprisonment in a corrections facility designated by the corrections department authority for a period of parole to be served in accordance with the provisions of Section 31-21-10 NMSA 1978 after the completion of any actual time of imprisonment and authority to require, as a condition of parole, the payment of the costs of parole services and reimbursement to a law enforcement agency or local crime stopper program in accordance with the provisions of that section. If imposed, the period of parole shall be deemed to be part of the sentence of the convicted person in addition to the basic sentence imposed pursuant to Subsection A of this section together with alterations, if any, pursuant to the provisions of the Criminal Sentencing Act.
D. When a court imposes a sentence of imprisonment pursuant to the provisions of Section 31-18-15.1, 31-18-16 or 31-18-17 NMSA 1978 and suspends or defers the basic sentence of imprisonment provided pursuant to the provisions of Subsection A of this section, the period of parole shall be served in accordance with the provisions of Section 31-21-10 NMSA 1978 for the degree of felony for the basic sentence for which the inmate was convicted. For the purpose of designating a period of parole, a court shall not consider that the basic sentence of imprisonment was suspended or deferred and that the inmate served a period of imprisonment pursuant to the provisions of the Criminal Sentencing Act.
E. The court may, in addition to the imposition of a basic sentence of imprisonment, impose a fine not to exceed:
(1) for a first degree felony resulting in the death of a child, seventeen thousand five hundred dollars ($17,500);
(2) for a first degree felony for aggravated criminal sexual penetration, seventeen thousand five hundred dollars ($17,500);
(3) for a first degree felony, fifteen thousand dollars ($15,000);
(4) for a second degree felony resulting in the death of a human being, twelve thousand five hundred dollars ($12,500);
(5) for a second degree felony for a sexual offense against a child, twelve thousand five hundred dollars ($12,500);
(6) for a second degree felony for sexual exploitation of children, five thousand dollars ($5,000);
(7) for a second degree felony, ten thousand dollars ($10,000);
(8) for a third degree felony resulting in the death of a human being, five thousand dollars ($5,000);
(9) for a third degree felony for a sexual offense against a child, five thousand dollars ($5,000);
(10) for a third degree felony for sexual exploitation of children, five thousand dollars ($5,000);
(11) for a third or fourth degree felony, five thousand dollars ($5,000); or
(12) for a fourth degree felony for sexual exploitation of children, five thousand dollars ($5,000).
F. When the court imposes a sentence of imprisonment for a felony offense, the court shall indicate whether or not the offense is a serious violent offense as defined in Section 33-2-34 NMSA 1978. The court shall inform an offender that the offender's sentence of imprisonment is subject to the provisions of Sections 33-2-34, 33-2-36, 33-2-37 and 33-2-38 NMSA 1978. If the court fails to inform an offender that the offender's sentence is subject to those provisions or if the court provides the offender with erroneous information regarding those provisions, the failure to inform or the error shall not provide a basis for a writ of habeas corpus.
G. No later than October 31 of each year, the New Mexico sentencing commission shall provide a written report to the secretary of corrections, all New Mexico criminal court judges, the administrative office of the district attorneys and the chief public defender. The report shall specify the average reduction in the sentence of imprisonment for serious violent offenses and nonviolent offenses, as defined in Section 33-2-34 NMSA 1978, due to meritorious deductions earned by prisoners during the previous fiscal year pursuant to the provisions of Sections 33-2-34, 33-2-36, 33-2-37 and 33-2-38 NMSA 1978. The corrections department shall allow the commission access to documents used by the department to determine earned meritorious deductions for prisoners.
History:
1953 Comp., § 40A-29-28, enacted by Laws 1977, ch. 216, § 4; 1979, ch. 152, § 1; 1980, ch. 38, § 1; 1981, ch. 285, § 1; 1987, ch. 139, § 3; 1993, ch. 38, § 1; 1993, ch. 182, § 1; 1994, ch. 23, § 3; 1999, ch. 238, § 5; 2003, ch. 75, § 4; 2003 (1st S.S.), ch. 1, § 5; 2005, ch. 59, § 2; 2007, ch. 69, § 2; 2016, ch. 2, § 2; 2019, ch. 211, § 7; 2022, ch. 56, § 29.
ANNOTATIONS
The 2022 amendment,
effective May 18, 2022, clarified noncapital felony sentencing provisions; and in Subsection A, deleted "If a person is convicted of" and added "As used in a statute that establishes", and added "following defined felony classifications and associated", and after "basic", deleted "sentence" and added "sentences", and deleted Paragraphs A(1) through A(13) and added the remainder of the subsection.
The 2019 amendment,
effective July 1, 2019, required that parole shall be imposed only for felony convictions where a person is sentenced to imprisonment for more than one year, unless the parties to a proceeding agree that a period of parole should be imposed; and in Subsection C, added "A period of parole shall be imposed only for felony convictions wherein a person is sentenced to imprisonment of more than one year, unless the parties to a proceeding agree that a period of parole should be imposed. If a period of parole is imposed", and after the next period, added "If imposed".
The 2016 amendment,
effective February 25, 2016, created a new basic sentence structure in the Criminal Sentencing Act for sexual exploitation of children offenses; in Subsection A, added new Paragraph (6) and redesignated former Paragraphs (6), (7) and (8) as Paragraphs (7), (8) and (9), respectively, added new Paragraph (10) and redesignated former Paragraph (9) as Paragraph (11), in Paragraph (11), after the semicolon, deleted "or", and added new Paragraph (12) and redesignated Paragraph (10) as Paragraph (13); and in Subsection D, after "31-18-16", deleted "31-18-16.1"; in Subsection E, added Paragraph (6) and redesignated former Paragraphs (6), (7) and (8) as Paragraphs (7), (8) and (9), respectively, in Paragraph (9), after the semicolon, deleted "or", added new Paragraph (10) and redesignated former Paragraph (9) as Paragraph (11), in Paragraph (11), after the semicolon, added "or", and added new Paragraph (12).
The 2007 amendment,
effective July 1, 2007, imposed life imprisonment and a $17,500 fine for a first degree felony for aggravated criminal sexual penetration.
The 2005 amendment,
effective June 17, 2005, added Subsection A(1) to impose a life sentence for the conviction of a first degree felony resulting in the death of a child and Subsection E(1) to impose a fine of seventeen thousand five hundred dollars for a first degree felony resulting in the death of a child.
The 2003 (1st S.S.) amendment,
effective February 3, 2004, inserted present Paragraphs (3) and (6) and redesignated former Paragraphs (3) through (6) accordingly in Subsection A, substituted "and sentenced pursuant to Subsection A of this section, unless the court alters the" for "of a first, second, third or fourth degree felony or a second or third degree felony resulting in the death of a human being, unless the court alters such" in Subsection B, deleted "of a first, second, third or fourth degree felony or a second or third degree felony resulting in the death of a human being" following "convicted" near the beginning of the first sentence in Subsection C, and inserted present Paragraphs (3) and (6) and redesignated former Paragraphs (3) through (5) accordingly in Subsection E.
The 2003 amendment,
effective July 1, 2003 in Subsection G substituted "New Mexico sentencing commission" for "criminal and juvenile justice coordinating council" near the beginning; and substituted "commission" for "coordinating council" near the end.
The 1999 amendment,
effective July 1, 1999, added "meritorious deductions" to the section heading and added Subsections F and G.
The 1994 amendment,
effective July 1, 1994, in Subsection A, inserted Paragraphs (2) and (4) and redesignated former Paragraphs (2) to (4) as Paragraphs (3), (5) and (6), and deleted "or" at the end of Paragraph (5); inserted "or a second, third or fourth degree felony resulting in the death of a human being" in Subsection B and in the first sentence in Subsection C; and, in Subsection E, inserted Paragraphs (2) and (4) and redesignated former Paragraphs (2) and (4) as Paragraphs (3) and (5).
The 1993 amendment,
effective July 1, 1993, inserted Subsection D, and redesignated former Subsection D as Subsection E. This section was also amended by Laws 1993, ch. 38, § 1, effective July 1, 1993. The section was set out as amended by Laws 1993, ch. 182, § 1.
See
12-1-8 NMSA 1978.
I. GENERAL CONSIDERATION.
The trial court has authority under Sections 31-18-15 and 31-18-15.1 NMSA 1978 to alter the basic sentence of life imprisonment
for noncapital felonies if the court finds any mitigating circumstances surrounding the offense or concerning the offender.
State v. Juan
, 2010-NMSC-041, 148 N.M. 747, 242 P.3d 314.
Method for calculating one-third of a basic sentence of life imprisonment.
— The thirty-year term for parole eligibility is the proper numerical standard by which to measure the trial court's authority to alter a basic sentence of life imprisonment under Sections 31-18-15 and 31-18-15.1 NMSA 1978. Because the trial court's alteration cannot exceed one-third of the basic sentence, the trial court lacks authority to reduce a defendant's parole eligibility by more than ten years.
State v. Juan
, 2010-NMSC-041, 148 N.M. 747, 242 P.3d 314.
A basic sentence of life imprisonment is subject to mitigation.
— Unlike a capital felony, a basic sentence of life imprisonment for a noncapital felony is not a mandatory life sentence and is subject to mitigation.
State v. Cabezuela
, 2015-NMSC-016.
Where defendant was convicted of intentional child abuse resulting in the death of a child under twelve, defendant was found guilty of a noncapital felony, and as a result, the life sentence was basic, not mandatory, and the district court was required to consider mitigation evidence before issuing a final sentence.
State v. Cabezuela
, 2015-NMSC-016.
The trial court has authority to alter the basic sentence of all noncapital felonies.
— Sections 31-18-15 and 31-18-15.1 NMSA 1978 explicitly grant the trial court the authority to alter the basic sentence for all noncapital felonies, including those that carry a basic life sentence of life imprisonment.
State v. Montoya
, 2015-NMSC-010.
Where defendant was convicted of intentional child abuse resulting in the death of a child under twelve, which carried a basic sentence of life imprisonment, and where the district court believed that the law required a mandatory life sentence, the trial court abused its discretion when it misunderstood its authority and obligation to consider mitigating circumstances.
State v. Montoya
, 2015-NMSC-010.
State v. Wilson, 2001-NMCA-032, 130 N.M. 319, 24 P.3d 351 can no longer be considered controlling authority
regarding sentencing enhancements of basic sentences.
State v. Frawley
, 2005-NMCA-017, 137 N.M. 18, 106 P.3d 580,
overruled by
State v. Lopez
, 2005-NMSC-036, 138 N.M. 526, 123 P.3d 754,
overruled by
State v. Frawley
, 2007-NMSC-057, 143 N.M. 7, 172 P.3d 144.
Fixing of penalties is a legislative function.
State v. Hovey
, 1975-NMCA-036, 87 N.M. 398, 534 P.2d 777;
State v. Crespin
, 1981-NMCA-095, 96 N.M. 640, 633 P.2d 1238.
The legislature establishes criminal penalties; the trial court's authority to sentence is that which has been provided by law.
State v. Wilson
, 1982-NMCA-019, 97 N.M. 534, 641 P.2d 1081, cert. denied, 98 N.M. 50, 644 P.2d 1039.
Mandatory sentencing does not violate the doctrine of separation of powers
contained in N.M. Const., art. III, § 1.
State v. Mabry
, 1981-NMSC-067, 96 N.M. 317, 630 P.2d 269.
Correction of omission of mandatory provision.
— Where a sentence lacks a statutorily-mandated provision, the trial court retains jurisdiction to correct the sentence by adding the omitted term.
State v. Abril
, 2003-NMCA-111, 134 N.M. 326, 76 P.3d 644, cert. denied, 134 N.M. 320, 76 P.3d 638.
Factual finding of whether crime resulted "in the death of a human being"
is for the jury and not the judge to make, under
Apprendi v. New Jersey
, 530 U.S. 466 (2000).
State v. McDonald
, 2003-NMCA-123, 134 N.M. 486, 79 P.3d 830, cert. granted, 2003-NMCERT-001, 134 N.M. 612, 81 P.3d 555 (decided under prior law).
Conspiracy to commit murder.
— Conspiracy to commit murder is a felony "resulting in the death of a human being" within the meaning of this section.
State v. Shije
, 1998-NMCA-102, 125 N.M. 581, 964 P.2d 142 (decided under prior law).
"Serious violent offense" finding mandatory.
— The omission of any finding does not satisfy the statutory requirement of Subsection F of this section of an affirmative finding as to whether or not the defendant committed a serious violent offense.
State v. Abril
, 2003-NMCA-111, 134 N.M. 326, 76 P.3d 644, cert. denied, 134 N.M. 320, 76 P.3d 638.
Serious violent offense.
— Where victim of vehicular homicide was a teenager, defendant's breath alcohol level was three times the presumptive level of intoxication, defendant admitted to police that he should be arrested because he was drunk, defendant announced at the scene of the accident that he intended to drive away, and defendant was either too intoxicated to notice the headlights of victim's automobile or he was being untruthful by claiming that the headlights of victim's automobile were off, district court properly concluded that defendant acted with recklessness in the face of knowledge that his acts were reasonably likely to result in serious harm and designated defendant's crime as a serious violent offense.
State v. Worrick
, 2006-NMCA-035, 139 N.M. 247, 131 P.3d 97, cert. quashed, 2007-NMCERT-008, 142 N.M. 436, 166 P.3d 1090.
Defendant must be afforded opportunity to speak before sentence pronounced.
— Section 31-18-15.1 NMSA 1978 extends the common-law doctrine of allocutus to noncapital felonies, as enumerated in this section, and the trial judge must give the defendant an opportunity to speak before he pronounces sentence; failure to do so renders the sentence invalid.
Tomlinson v. State
, 1982-NMSC-074, 98 N.M. 213, 647 P.2d 415.
Victim restitution policy not limited to cases where sentences suspended or deferred.
— Section 31-17-1B NMSA 1978 contains no qualifying language limiting the application of the policy of victim restitution only to those cases in which a sentence is suspended or deferred.
State v. Gross
, 1982-NMCA-099, 98 N.M. 309, 648 P.2d 348, cert. denied, 98 N.M. 336, 648 P.2d 794.
Mandatory probationary period may include restitution condition.
— Section 31-17-1B NMSA 1978 does not limit or restrict the application of restitution only to those cases in which sentence is suspended or deferred. A mandatory probationary period may be included in the defendant's sentence with the condition to make restitution to the victim.
State v. Ennis
, 1982-NMCA-157, 99 N.M. 117, 654 P.2d 570, cert. denied, 99 N.M. 148, 655 P.2d 160.
Restitution mandatory when sentence suspended or deferred.
— Section 31-17-1B NMSA 1978 makes it mandatory to require victim restitution when a sentence is deferred or suspended; the court has no discretion in such instances.
State v. Gross
, 1982-NMCA-099, 98 N.M. 309, 648 P.2d 348, cert. denied, 98 N.M. 336, 648 P.2d 794.
A fine is a sentence.
State v. Aragon
, 1979-NMCA-074, 93 N.M. 132, 597 P.2d 317.
Defendant sentenced under statute existing when crime was committed.
— Where defendant committed voluntary manslaughter before Indeterminate Sentence Act was passed, but was convicted afterwards, defendant's sentencing under statute existing at time crime was committed was proper.
State v. Armstrong
, 1956-NMSC-053, 61 N.M. 258, 298 P.2d 941.
Good behavior, indeterminate sentencing and parole laws are compatible
and are being administered right along together.
Owens v. Swope
, 1955-NMSC-079, 60 N.M. 71, 287 P.2d 605, cert. denied, 350 U.S. 954, 76 S. Ct. 343, 100 L. Ed. 830 (1956).
No constitutional separation-of-powers infirmity in unrestricted period-of-parole sentencing authority.
— There is no constitutional separation-of-powers infirmity in the legislature's grant to the judiciary of an unrestricted period-of-parole sentencing authority, any more than there was in its grant to the parole board of the same power to set whatever period of parole the board chose to impose.
State v. Freeman
, 1980-NMCA-142, 95 N.M. 127, 619 P.2d 572, cert. denied, 95 N.M. 299, 621 P.2d 516.
Application to youthful offenders.
— The basic sentences prescribed by this section are "mandatory" within the meaning of Section 32A-2-20D NMSA 1978, while the alterations in the basic sentences allowed by 31-18-15.1 NMSA 1978 are discretionary and, therefore, circumscribed by the Children's Code (Section 32A-1-1 NMSA 1978 et seq.); thus, the maximum sentence that may be imposed upon a youthful offender convicted of a non-capital felony is the basic sentence prescribed by this section, plus, if applicable, the enhancements prescribed by Sections 31-18-16 and 31-18-16.1 NMSA 1978 (repealed).
State v. Guerra
, 2001-NMCA-031, 130 N.M. 302, 24 P.3d 334, cert. denied
sub nom.
State v. Ruby G.
, 130 N.M. 459 , 26 P.3d 103 (2001).
Applicability of parole to indeterminate sentencing.
— The parole provisions of this act apply to statutes such as Section 66-3-505 NMSA 1978 (now Section 30-16D-4 NMSA 1978) which prescribe an indeterminate period of imprisonment, and trial court did not lack authority to impose the statutory term of parole of one year in addition to discretionary two years confinement for transferring stolen vehicle.
State v. Baker
, 1993-NMCA-131, 116 N.M. 526, 864 P.2d 1277.
II. JUDICIAL DISCRETION.
Subsection B is mandatory.
— Subsection B of this section is mandatory and limits the judge's sentencing discretion.
State v. Lopez
, 2005-NMSC-036, 138 N.M. 521, 123 P.3d 754,
overruled by
State v. Frawley
, 2007-NMSC-057, 143 N.M. 7, 172 P.3d 144.
Trial court did not abuse its discretion in sentencing defendant
pursuant to Subsection A of this section and in accordance with a plea agreement.
State v. Aker
, 2005-NMCA-063, 137 N.M. 561, 113 P.3d 384, cert. denied, 2005-NMCERT-005, 137 N.M. 522, 113 P.3d 345.
No entitlement to mitigation.
— Mitigation of a sentence depends solely on the discretion of the district court and on no entitlement derived from any qualities of the defendant.
State v. Cumpton
, 2000-NMCA-033, 129 N.M. 47, 1 P.3d 429, cert. denied, 128 N.M. 688, 997 P.2d 820.
There is no obligation on the part of a judge to depart from the basic sentence.
— Following defendant's conviction for second-degree murder, the district court judge heard from nine witnesses on defendant's behalf, but declined to mitigate defendant's sentence. Defendant was entitled to no more than a sentence prescribed by law, and it was within the district court's discretion to decline to mitigate defendant's sentence.
State v. Suskiewich
, 2016-NMCA-004, cert. denied, 2015-NMCERT-011.
This section does not prohibit consecutive sentencing
but leaves the issue to be resolved under the common law which gives the court the discretion to order that sentences be served concurrently or consecutively.
State v. Jensen
, 1998-NMCA-034, 124 N.M. 726, 955 P.2d 195.
Trial court is without authority to fix lesser sentence than that provided
by statute.
State v. Beachum
, 1970-NMCA-119, 82 N.M. 204, 477 P.2d 1019.
Imposition of sentence bars increased penalty.
— After imposition of a valid sentence, a court may not increase the penalty.
State v. Crespin
, 1981-NMCA-095, 96 N.M. 640, 633 P.2d 1238.
Impermissible to increase sentence because state failed to include "mitigation" language in sentence.
— The use of the state's failure to include "mitigation" language in the judgment and sentence in order to later increase the defendant's sentence is impermissible. The proper remedy is to file an amended judgment and sentence containing the appropriate language.
State v. Sisneros
, 1981-NMCA-085, 98 N.M. 279, 648 P.2d 318,
aff'd
, 1984-NMSC-085, 101 N.M. 679, 687 P.2d 736,
overruled on other grounds by
State v. Saavedra
, 1988-NMSC-100, 108 N.M. 38, 766 P.2d 298.
Amendment of sentence to include mandatory parole period.
— Where defendant's initial sentence lacked a mandatory parole period, it was not an illegal enhancement of the sentence for the court to amend the sentence to include the parole period even after the defendant had been released from the penitentiary having served his basic sentence of imprisonment.
State v. Acuna
, 1985-NMCA-083, 103 N.M. 279, 705 P.2d 685.
Credit toward parole for time served.
— The parole board, not the sentencing court, determines whether credit should be given toward a defendant's mandatory parole period for any time served.
State v. Martinez
, 1989-NMCA-036, 108 N.M. 604, 775 P.2d 1321, cert. denied, 108 N.M. 624, 776 P.2d 846.
Execution of sentence bars imposition of additional punishment.
— Once a sentence is executed by the payment of a fine, the trial court lacks authority to impose additional punishment upon defendant.
State v. Aragon
, 1979-NMCA-074, 93 N.M. 132, 597 P.2d 317.
Contradictory judgment renders sentence improper.
— Where the trial court deferred a sentence of imprisonment and imposed a sentence of a fine for the same offense, either the deferral or the fine is subject to being stricken as an improper sentence, and the execution of either part of the sentence renders the remaining part void.
State v. Aragon
, 1979-NMCA-074, 93 N.M. 132, 597 P.2d 317.
Judges not authorized to limit eligibility for parole.
— The legislature has not authorized judges, in imposing sentence, to limit eligibility for parole, but rather has authorized the state board of probation and parole to grant paroles consistent with eligibility conditions established by the legislature; the judge may express his views concerning a prospective parole but the final decision on parole shall be of the board.
State v. Hovey
, 1975-NMCA-036, 87 N.M. 398, 534 P.2d 777.
A provision in the trial court's judgment that defendant who pleaded guilty of a fourth-degree felony was not to be considered for parole for a minimum of one year was beyond the court's sentencing authority, was not a valid part of defendant's sentence and did not limit the authority of the state board of probation and parole to consider defendant for parole.
State v. Hovey
, 1975-NMCA-036, 87 N.M. 398, 534 P.2d 777.
Applicability of parole to indeterminate sentencing.
— The parole provisions of this act apply to statutes such as Section 66-3-505 NMSA 1978 (now Section 30-16D-4 NMSA 1978) which prescribe an indeterminate period of imprisonment, and trial court did not lack authority to impose the statutory term of parole of one year in addition to discretionary two years confinement for transferring stolen vehicle.
State v. Baker
, 1993-NMCA-131, 116 N.M. 526, 864 P.2d 1277.
Refusal to grant leniency.
— The sentencing court's imposition of the basic sentence for a fourth-degree felony and failure to suspend the sentence on the basis that the defendant refused to name his drug source did not constitute an increase, enhancement, or aggravation of the sentence imposed.
State v. Sosa
, 1996-NMSC-057, 122 N.M. 446, 926 P.2d 299.
Factors that Earned Meritorious Deduction Act
allows judge to find in order to limit credit under Section 33-2-34 L(4)(n) NMSA 1978 (now Section 33-2-34L(4)(o) NMSA 1978) do not have to be found by the jury beyond a reasonable doubt.
State v. Montoya
, 2005-NMCA-078, 137 N.M. 713, 114 P.3d 393, cert. denied, 2005-NMCERT-006, 137 N.M. 766, 115 P.3d 229.
III. SPECIFIC SENTENCES.
Failure to instruct jury to find whether crimes resulted in death
was harmless error where overwhelming evidence was that defendant participated in armed robbery of victim, victim was beaten in head with metal pipe and suffered fractured skull, died soon thereafter of his injuries, and there was no evidence of another cause of death, nor did defendant dispute that armed robbery resulted in victim's death.
State v. McDonald
, 2004-NMSC-033, 136 N.M. 417, 99 P.3d 667.
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.
Proper to enhance sentence under both habitual offender and firearm 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.
Multiple enhancements permitted.
— In the absence of the type of "dual use" (i.e., when the same fact is used both as an element of the crime and a subsequent enhancement or as the basis for two separate enhancements) discussed in
State v. Keith
, 1985-NMCA-012, 102 N.M. 462, 697 P.2d 145, cert. denied, 102 N.M. 492, 697 P.2d 492 and its progeny, the legislature has authorized both enhancements under the basic sentencing statute and on the finding of aggravating circumstances.
State v. McDonald
, 2003-NMCA-123, 134 N.M. 486, 79 P.3d 830,
aff'd in part, rev'd in part
, 2004-NMSC-033, 136 N.M. 417, 99 P.3d 667.
Enhanced 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.
Enhanced sentences invalidated.
— Where defendant's basic sentences imposed under this section were increased under Section 31-18-15.1 NMSA 1978 based on the district court's findings of aggravating circumstances, and not based on a jury's findings and under a burden of proof beyond a reasonable doubt, the enhancements are invalidated.
State v. Frawley
, 2005-NMCA-017, 137 N.M. 18, 106 P.3d 580, cert. denied, 2005-NMCERT-002, 137 N.M. 265, 110 P.3d 73,
overruled by
State v. Lopez
, 2005-NMSC-036, 138 N.M. 521, 123 P.3d 754,
overruled by
State v. Frawley
, 2007-NMSC-057, 143 N.M. 7, 172 P.3d 144.
Proper aggravated battery sentence not made erroneous by superfluous reference to another offense.
— Having stated his reason for altering the basic sentence for felony aggravated battery, the altered sentence is not made erroneous by the court's superfluous reference to another offense.
State v. Wilson
, 1982-NMCA-019, 97 N.M. 534, 641 P.2d 1081, cert. denied, 98 N.M. 50, 644 P.2d 1039.
The district court erred by failing to comply with the criminal sentencing act for a third-degree felony for a sexual offense against a child.
— Where defendant was convicted of attempt to commit second-degree criminal sexual contact of a minor (CSCM), a third degree felony, and where the district court imposed a basic sentence of three years, defendant's basic sentence was an illegal sentence, because the Criminal Sentencing Act mandates that a basic sentence for a third-degree felony shall be three years imprisonment, unless the third-degree felony is a sexual offense against a child, in which case the basic sentence shall be six years imprisonment. Defendant's crime, although incomplete, was a sexual offense against a child.
State v. Notah
, 2022-NMCA-005, cert. denied.
Imprisonment for noncompliance with parole matters
is not a term of imprisonment which can be imposed by sentence, as such imprisonment results only after sentence has been imposed.
State v. Gonzales
, 1981-NMCA-086, 96 N.M. 556, 632 P.2d 1194.
When multiple parole periods commence.
— The New Mexico Criminal Sentencing Act (Sections 31-18-12 to 31-18-21 NMSA 1978) requires that in the case of consecutive sentencing, the parole period of each offense commence immediately after the period of imprisonment for that offense, and such parole time will run concurrently with the running of any subsequent basic sentence then being served.
Brock v. Sullivan
, 1987-NMSC-013, 105 N.M. 412, 733 P.2d 860.
The defendant, convicted of a fourth-degree felony and a misdemeanor, was sentenced consecutively to 18 months imprisonment for the felony and 364 days for the misdemeanor. The court erred in requiring him to serve his parole period after the completion of the entire sentence, 18 months and 364 days, instead of allowing him to begin his parole after the term for the felony had expired and concurrently with the term for the misdemeanor.
Gillespie v. State
, 1988-NMSC-068, 107 N.M. 455, 760 P.2d 147.
Where defendant was convicted of five counts of forgery in one case and seven felonies in a subsequent case,
and was sentenced to consecutive terms of imprisonment, the parole period for defendant's first sentence, since it is deemed part of the sentence, commenced immediately after the period of imprisonment for the first offense and ran concurrently with the running of the subsequent basic sentence being served which would also require a period of parole following the subsequent sentence.
State v. Ortiz
, 2015-NMCA-020, cert. denied, 2015-NMCERT-001.
Lesser charge against codefendant provides no basis for relief.
— The fact that defendant was sentenced to the term authorized by law provides no basis for post-conviction relief where defendant asserts that "codefendants" were sentenced for a fourth-degree felony on the basis of "the same identical act," and that the state had reduced the charge to a fourth-degree felony on one codefendant.
State v. Follis
, 1970-NMCA-083, 81 N.M. 690, 472 P.2d 655.
Sentence upon two charges arising out of same transaction.
— Under former law, which required that the term of imprisonment "shall not exceed the maximum nor be less than the minimum fixed by law," where appellant was sentenced for both rape and assault with intent to commit rape, both charges arose out of the same transaction, were committed at the same time as part of a continuous act, and were inspired by the same criminal intent which was an essential element of each offense, and, accordingly, were susceptible of only one punishment.
State v. Blackwell
, 1966-NMSC-088, 76 N.M. 445, 415 P.2d 563.
Consecutive and concurrent sentences.
— Where 1969 sentences were expressly made consecutive to 1967 sentences, and eight sentences in 1969 were also expressly made consecutive, these nine consecutive sentences were validly imposed.
Deats v. State
, 1972-NMCA-155, 84 N.M. 405, 503 P.2d 1183.
Period of parole is to be in addition to basic sentence
and is considered a part of the sentence of the convicted person.
State v. Johnson
, 1980-NMCA-083, 94 N.M. 636, 614 P.2d 1085, cert. denied, 94 N.M. 674, 615 P.2d 991.
There is no restriction placed upon period of parole
except that it be for a reasonable period of time consistent with the needs of the individual.
State v. Johnson
, 1980-NMCA-083, 94 N.M. 636, 614 P.2d 1085, cert. denied, 94 N.M. 674, 615 P.2d 991.
Homicide by vehicle.
— Even though Section 66-8-101 NMSA 1978 does not include the language "resulting in the death of a human being," the crime of homicide by vehicle is subject to the six-year sentence authorized by Subsection A(4).
State v. Guerro
, 1999-NMCA-026, 126 N.M. 699, 974 P.2d 669, cert. denied, 126 N.M. 533, 972 P.2d 352.
Issuing a worthless check over $25.00.
— The offense of issuing a worthless check over $25.00 is a "felony" but could not constitute a "fourth degree felony" because the minimum sentence imposed for issuing worthless checks is less than the stated sentence for fourth degree felonies.
State v. Muzio
, 1987-NMCA-006, 105 N.M. 352, 732 P.2d 879, cert. denied, 105 N.M. 358, 732 P.2d 1381.
Voluntary manslaughter with firearm enhancement.
— Upon conviction of voluntary manslaughter, with firearm enhancement, imposition of a three-year sentence under 30-2-3 NMSA 1978, plus an additional three-year sentence under this section, and an additional one-year firearm enhancement, did not result in multiple punishments for the same offense in violation of double jeopardy.
State v. Alvarado
, 1997-NMCA-027, 123 N.M. 187, 936 P.2d 869, cert. denied, 123 N.M. 168, 936 P.2d 337.
District judge may not alter judgment after issuance of commitment.
— In the absence of an adjudication by the supreme court to the contrary, it is the opinion that a district judge is without authority to change, alter or amend a judgment after issuance of commitment to the penitentiary. 1959 Op. Att'y Gen. No. 59-122.
Law reviews.
— For comment, "Criminal Procedure - Preventive Detention in New Mexico," see 4 N.M.L. Rev. 247 (1974).
For comment, "Definitive Sentencing in New Mexico: The 1977 Criminal Sentencing Act," see 9 N.M.L. Rev. 131 (1978-79).
For article, "New Mexico Antitrust Law," see 9 N.M.L. Rev. 339 (1979).
For article, "Sufficiency of Provocation for Voluntary Manslaughter in New Mexico: Problems in Theory and Practice," see 12 N.M.L. Rev. 747 (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 article, "Survey of New Mexico Law, 1982-83: Criminal Procedure," see 14 N.M.L. Rev. 109 (1984).
For annual survey of criminal procedure in New Mexico, see 18 N.M.L. Rev. 345 (1988).
For comment, "An Equal Protection Challenge to First Degree Depraved Mind Murder Under the New Mexico Constitution", see 19 N.M.L. Rev. 511 (1989).
For article, "Unintentional homicides caused by risk-creating conduct: Problems in distinguishing between depraved mind murder, second degree murder, involuntary manslaughter, and noncriminal homicide in New Mexico," 20 N.M.L. Rev. 55 (1990).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 21 Am. Jur. 2d Criminal Law §§ 825, 828, 944, 949.
Right to credit on state sentence for time served under sentence of court of separate jurisdiction where state court fails to specify in that regard, 90 A.L.R.3d 408.
Sentencing: permissibility of sentence to a fine only, under statutory provision for imprisonment or imprisonment and fine, 35 A.L.R.4th 192.
Validity, construction, and application of concurrent-sentence doctrine - state cases, 56 A.L.R.5th 385.