A. Unless otherwise provided in this section, all persons convicted of a crime under the laws of New Mexico shall be sentenced in accordance with the provisions of the Criminal Sentencing Act; provided, that a person sentenced as a serious youthful offender or as a youthful offender may be sentenced to less than the basic or mandatory sentence prescribed by the Criminal Sentencing Act.
B. Whenever a defendant is convicted of a crime under the constitution of New Mexico, or a statute not contained in the Criminal Code [30-1-1 NMSA 1978], which specifies the penalty to be imposed on conviction, the court shall set as a definite term of imprisonment the minimum term prescribed by the statute or constitutional provision and may impose the fine prescribed by the statute or constitutional provision for the particular crime for which the person was convicted; provided, that a person sentenced as a serious youthful offender or as a youthful offender may be sentenced to less than the minimum term of imprisonment prescribed by the statute or the constitutional provision.
C. A crime declared to be a felony by the constitution or a statute not contained in the Criminal Code, without specification of the sentence or fine to be imposed on conviction, shall constitute a fourth degree felony as prescribed under the Criminal Code for the purpose of the sentence, and the defendant shall be so sentenced.
D. Any other crime for which the sentence to be imposed upon conviction is not specified shall constitute, for the purpose of the sentence, a petty misdemeanor.
History: 1953 Comp., § 40A-29-27, enacted by Laws 1977, ch. 216, § 2; 1993, ch. 77, § 4.
ANNOTATIONSThe 1993 amendment, effective July 1, 1993, added the provisos at the end of Subsections A and B, and made minor stylistic changes.
I. GENERAL CONSIDERATION.
Criminal sentences must be imposed as prescribed by statute. State v. Baros, 1968-NMSC-001, 78 N.M. 623, 435 P.2d 1005.
Plea agreements will be specifically enforced. — Where defendant entered into three plea agreements in which the state agreed that defendant would serve zero to nine years of incarceration, supervised probation, treatment program or a combination thereof and that the sentences in each case would be served concurrently with each other; and the district court accepted the plea agreements and sentenced defendant to twenty-one years in prison, with sixteen years suspended, for an actual prison term of five year, plus five years of supervised probation, the sentence violated the terms of the plea agreements, because the suspended sentence allowed for the possibility that defendant could actually serve more than nine years in prison and defendant was entitled to specific performance of the plea agreements. State v. Gomez, 2011-NMCA-120, 267 P.3d 831.
Plea agreement provided for a specific sentence. — Where the plea agreement provided for a maximum sentence of forty years and the court accepted the plea, the plea agreement constituted a promise, not a recommendation, for a sentence within a particular range that the court was bound to enforce and the imposition of a forty-two year sentence, nine of which were suspended, violated the sentence cap in the plea agreement. State v. Miller, 2012-NMCA-051, 278 P.3d 561, cert. granted, 2012-NMCERT-005.
Plea agreement for a maximum permissible sentence "at initial sentencing". — Where the plea agreement provided for a maximum sentence of forty years "at initial sentencing", the phrase "at initial sentencing" did not transform the limit on sentencing into a limit on the initial period of incarceration because the sentence could not be increased at a later date and the court's sentence of forty-two years imprisonment, nine of which were suspended, violated the plea agreement. State v. Miller, 2012-NMCA-051, 278 P.3d 561, cert. granted, 2012-NMCERT-005.
Sentence otherwise imposed void. — Sentences must be imposed as prescribed by statute, and a sentence otherwise imposed was not merely irregular, but was null and void, and a void sentence may be vacated even though it has been partially served. State v. Peters, 1961-NMSC-160, 69 N.M. 302, 366 P.2d 148, cert. denied, 369 U.S. 831, 82 S. Ct. 849, 7 L. Ed. 2d 796 (1962).
Sentences which are unauthorized by law are null and void. Sneed v. Cox, 1964-NMSC-250, 74 N.M. 659, 397 P.2d 308.
Fixing of penalties is legislative function, and what constitutes an adequate punishment is a matter for legislative judgment, and the question of whether the punishment for a given crime is too severe and disproportionate to the offense is for the legislature to determine. State v. Peters, 1967-NMSC-171, 78 N.M. 224, 430 P.2d 382.
For crimes committed prior to July 1, 1979, the sentencing provision in effect at the time of the commission of the crime controls. State v. Hargrove, 1989-NMSC-012, 108 N.M. 233, 771 P.2d 166.
Subsection B controls over DWI statute. — Section 66-8-102E NMSA 1978 (now Section 66-8-102F NMSA 1978) which provides that where the conviction is for a second or subsequent DWI, the offense is punishable by imprisonment for not less than ninety days or more than one year, does not control over Subsection B of this section which provides the method for establishing the applicable determinate sentence for offenses not contained in the Criminal Code. State v. Greyeyes, 1987-NMCA-022, 105 N.M. 549, 734 P.2d 789, cert. denied, 105 N.M. 521, 734 P.2d 761.
Motor Vehicle Code violation petty misdemeanor. — Section 66-8-7B NMSA 1978 (Motor Vehicle Code violation) is governed by the provisions of Subsection D of this section. The violation is not declared to be a felony. Since it is not declared to be a felony and is not punishable by a specified sentence, Subsection D applies. State v. Mendoza, 1993-NMCA-027, 115 N.M. 772, 858 P.2d 860, cert. denied, 115 N.M. 359, 851 P.2d 481.
Section does not apply to contempt sentence. — Contempt is not a "crime" under Section 34-1-2 NMSA 1978, and therefore, this section does not apply to a contempt sentence. State v. Case, 1985-NMCA-027, 103 N.M. 574, 711 P.2d 19, rev'd on other grounds, 103 N.M. 501, 709 P.2d 670.
Effect of acquittal on one count of indictment. — The mere fact that the jury saw fit to acquit the defendant on one count of the indictment cannot be construed as effectuating a determination of the factual issues under another count, even though the same evidence is offered in support of both counts of the indictment; as the reason for the acquittals is speculative, the acquittals, even though irreconcilable with the conviction, do not require the conviction to be set aside as a matter of law. State v. Rogers, 1969-NMCA-034, 80 N.M. 230, 453 P.2d 593.
Effective date of resentence is the date when the initial sentence commenced. State v. Dalrymple, 1966-NMSC-203, 77 N.M. 4, 419 P.2d 218.
Effect of sentence in excess of that permitted by law. — Where a court has jurisdiction of the person and the offense, the imposition of a sentence in excess of what the law permits does not render the legal or authorized portion of the sentence void, but only leaves such portion in excess open to question and attack. A sentence is legal so far as it is within the provisions of law and the jurisdiction of the court over the person and the offense, and only void as to the excess, when such excess is separable and may be dealt with without disturbing the valid portion of the sentence. Sneed v. Cox, 1964-NMSC-250, 74 N.M. 659, 397 P.2d 308.
Legal or authorized portion valid. — The imposition of a sentence in excess of what the law permits does not render the legal or authorized portion of the sentence void, but only leaves such portion in excess open to attack, unless such portion is inseparable and cannot be dealt with without disturbing the valid portion of the sentence. State v. Baros, 1968-NMSC-001, 78 N.M. 623, 435 P.2d 1005.
When probationary part of sentence void. — Where the court ordered defendant placed on probation without deferring or suspending any of his sentences, this action is not within the bounds prescribed by law, and therefore, the probationary part of the defendant's sentence is void. State v. Nolan, 1979-NMCA-116, 93 N.M. 472, 601 P.2d 442, cert. denied, 93 N.M. 683, 604 P.2d 821.
II. JUDICIAL DISCRETION.
Sua sponte amendment of sentence. — Where defendant was convicted of possession of child pornography; the court sentenced defendant to three years of imprisonment, suspended thirty-four and one-half years, followed by five years of supervised probation and on the following day, after reconsidering the court's reliance on the fact that defendant had no criminal history and the evidence in the case, the court revised the sentence to nine years of imprisonment, the court did not abuse its discretion. State v. Ballard, 2012-NMCA-043, 276 P.3d 976, cert. granted, 2012-NMCERT-005.
Court may impose statutory sentence notwithstanding jury's recommendation for clemency. — Trial court did not err in refusing to grant appellant's motion to vacate for the reason that, despite the jury's recommendation for clemency, minor was sentenced for armed robbery to the maximum term permitted by law. State v. Henry, 1967-NMSC-265, 78 N.M. 573, 434 P.2d 692.
Statutory sentence notwithstanding recommendation in diagnostic report. — Where the sentence was in accordance with law, an appellate court cannot say it was unjust or improper in the circumstances because recommendations in a diagnostic report for a more lenient sentence were not followed or because the statutory sentence is imposed on a 17-year old first offender. State v. Madrigal, 1973-NMCA-116, 85 N.M. 496, 513 P.2d 1278, cert. denied, 85 N.M. 483, 513 P.2d 1265.
Court need not impose identical sentences on joint defendants. — There is no requirement in criminal procedure that a court impose identical sentences upon persons jointly guilty of a crime. State v. Holly, 1968-NMCA-075, 79 N.M. 516, 445 P.2d 393.
Court statutorily limited in sentencing authority. — The district court's authority to sentence is only that which has been provided by statute. State v. Sparks, 1985-NMCA-004, 102 N.M. 317, 694 P.2d 1382.
Suspended or deferred sentence within discretion of trial court. — Of the sentencing alternatives available, a suspended or deferred sentence is within the discretion of the trial court. State v. Madrigal, 1973-NMCA-116, 85 N.M. 496, 513 P.2d 1278, cert. denied, 85 N.M. 483, 513 P.2d 1265 (decided under former law).
Sentencing judge has discretion in determining whether sentences are to run consecutively or concurrently. His discretion in this area will not be interfered with unless he has violated one of the sentencing statutes. State v. Deats, 1971-NMCA-089, 82 N.M. 711, 487 P.2d 139.
Court should not fix date when sentence to commence. — It is improper for a trial court to fix a date when the sentence should commence. Sneed v. Cox, 1964-NMSC-250, 74 N.M. 659, 397 P.2d 308.
Jurisdiction of trial court to sentence is not exhausted until sentence pronounced, and will carry over from term to term. Pavlich v. State, 1968-NMSC-147, 79 N.M. 473, 444 P.2d 984.
Sentences cannot be increased after first commitment has begun. Deats v. State, 1972-NMCA-155, 84 N.M. 405, 503 P.2d 1183.
Credit where prisoner has served part of void sentence. — It is proper to allow credit where a prisoner is resentenced without a new trial after serving part of a void sentence. Sneed v. Cox, 1964-NMSC-250, 74 N.M. 659, 397 P.2d 308.
III. SPECIFIC SENTENCES.
Life sentence is not mandatory for a second conviction of trafficking in heroin and the court has the authority to suspend or defer the sentence imposed. State v. Sanchez, 1982-NMSC-032, 97 N.M. 521, 641 P.2d 1068.
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.
Validity of consecutive 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.
Special probation condition did not terminate parental rights. — Where defendant pleaded guilty to eight counts of criminal sexual contact of a minor in the fourth degree, the charges stemming from a series of incidents that occurred over the course of several months between defendant and one of his adopted daughters, and after the sentencing hearing, the district court imposed nine conditions of probation, with one condition prohibiting defendant from having direct or indirect contact with all children under the age of 18, including the victim of his crimes, absent a court order, the specific condition did not amount to a "de facto" termination of parental rights, necessitating jurisdiction within the children's court. State v. Garcia, 2005-NMCA-065, 137 N.M. 583, 113 P.3d 406.
Jurisdiction to revoke probation imposed under consecutive sentences. — Where two consecutive sentences are imposed, as to the second sentence, the district court retained jurisdiction to revoke a defendant's probation when probation violations occurred before the defendant had begun serving the second sentence to which the probation is attached and as to the first sentence, which the defendant had completed serving, the district court did not have jurisdiction to revoke the probation that was attached to the first sentence. State v. Lopez, 2006-NMCA-079, 140 N.M. 1, 138 P.3d 534, aff'd 2007-NMSC-011, 141 N.M. 293, 154 P.3d 668.
Magistrate court may order restitution. — The magistrate court may, as part of its sentencing power, order a Criminal Code or Motor Vehicle Code violator to make restitution. 1979 Op. Att'y Gen. No. 79-18.
Law reviews. — For symposium, "The Impact of the Equal Rights Amendment on the New Mexico Criminal Code," see 3 N.M.L. Rev. 106 (1973).
For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976).
For comment, "Definitive Sentencing in New Mexico: The 1977 Criminal Sentencing Act," see 9 N.M.L. Rev. 131 (1978-79).
For article, "The Capital Defendant's Right to Make a Personal Plea for Mercy: Common Law Allocution and Constitutional Mitigation," see 15 N.M.L. Rev. 41 (1985).
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 law and procedure, see 19 N.M.L. Rev. 655 (1990).
For survey of 1990-91 criminal procedure and evidence, see 22 N.M.L. Rev. 713 (1992).
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).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law § 825.
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.
Loss of jurisdiction by delay in imposing sentence, 98 A.L.R.3d 605.
Power of state court, during same term, to increase severity of lawful sentence - modern status, 26 A.L.R.4th 905.
Power of court to increase severity of unlawful sentence - modern status, 28 A.L.R.4th 147.
Propriety of sentencing judge's consideration of defendant's perjury or lying in pleas or testimony in present trial, 34 A.L.R.4th 888.
Admissibility of expert testimony as to appropriate punishment for convicted defendant, 47 A.L.R.4th 1069.
When does delay in imposing sentence violate speedy trial provision, 86 A.L.R.4th 340.
Transmission or risk of transmission of human immunodeficiency virus (HIV) or acquired immunodeficiency syndrome (AIDS) as basis for prosecution or sentencing in criminal or military discipline case, 13 A.L.R.5th 628.