A. To earn meritorious deductions, a prisoner confined in a correctional facility designated by the corrections department must be an active participant in programs recommended for the prisoner by the classification supervisor and approved by the warden or the warden's designee. Meritorious deductions shall not exceed the following amounts:
(1) for a prisoner confined for committing a serious violent offense, up to a maximum of four days per month of time served;
(2) for a prisoner confined for committing a nonviolent offense, up to a maximum of thirty days per month of time served;
(3) for a prisoner confined following revocation of parole for the alleged commission of a new felony offense or for absconding from parole, up to a maximum of four days per month of time served during the parole term following revocation; and
(4) for a prisoner confined following revocation of parole for a reason other than the alleged commission of a new felony offense or absconding from parole:
(a) up to a maximum of eight days per month of time served during the parole term following revocation, if the prisoner was convicted of a serious violent offense or failed to pass a drug test administered as a condition of parole; or
(b) up to a maximum of thirty days per month of time served during the parole term following revocation, if the prisoner was convicted of a nonviolent offense.
B. A prisoner may earn meritorious deductions upon recommendation by the classification supervisor, based upon the prisoner's active participation in approved programs and the quality of the prisoner's participation in those approved programs. A prisoner may not earn meritorious deductions unless the recommendation of the classification supervisor is approved by the warden or the warden's designee.
C. If a prisoner's active participation in approved programs is interrupted by a lockdown at a correctional facility, the prisoner may continue to be awarded meritorious deductions at the rate the prisoner was earning meritorious deductions prior to the lockdown, unless the warden or the warden's designee determines that the prisoner's conduct contributed to the initiation or continuance of the lockdown.
D. A prisoner confined in a correctional facility designated by the corrections department is eligible for lump-sum meritorious deductions as follows:
(1) for successfully completing an approved vocational, substance abuse or mental health program, one month; except when the prisoner has a demonstrable physical, mental health or developmental disability that prevents the prisoner from successfully earning a high school equivalency credential, in which case, the prisoner shall be awarded three months;
(2) for earning a high school equivalency credential, three months;
(3) for earning an associate's degree, four months;
(4) for earning a bachelor's degree, five months;
(5) for earning a graduate qualification, five months; and
(6) for engaging in a heroic act of saving life or property, engaging in extraordinary conduct for the benefit of the state or the public that is at great expense or risk to or involves great effort on the part of the prisoner or engaging in extraordinary conduct far in excess of normal program assignments that demonstrates the prisoner's commitment to self-rehabilitation. The classification supervisor and the warden or the warden's designee may recommend the number of days to be awarded in each case based upon the particular merits, but any award shall be determined by the director of the adult institutions division of the corrections department or the director's designee.
E. Lump-sum meritorious deductions, provided in Paragraphs (1) through (6) of Subsection D of this section, may be awarded in addition to the meritorious deductions provided in Subsections A and B of this section. Lump-sum meritorious deductions shall not exceed one year per award and shall not exceed a total of one year for all lump-sum meritorious deductions awarded in any consecutive twelve-month period.
F. A prisoner is not eligible to earn meritorious deductions if the prisoner:
(1) disobeys an order to perform labor, pursuant to Section 33-8-4 NMSA 1978;
(2) is in disciplinary segregation;
(3) is confined for committing a serious violent offense and is within the first sixty days of receipt by the corrections department; or
(4) is not an active participant in programs recommended and approved for the prisoner by the classification supervisor.
G. The provisions of this section shall not be interpreted as providing eligibility to earn meritorious deductions from a sentence of life imprisonment or a sentence of life imprisonment without possibility of release or parole.
H. The corrections department shall promulgate rules to implement the provisions of this section, and the rules shall be matters of public record. A concise summary of the rules shall be provided to each prisoner, and each prisoner shall receive a quarterly statement of the meritorious deductions earned.
I. A New Mexico prisoner confined in a federal or out-of-state correctional facility is eligible to earn meritorious deductions for active participation in programs on the basis of the prisoner's conduct and program reports furnished by that facility to the corrections department. All decisions regarding the award and forfeiture of meritorious deductions at such facility are subject to final approval by the director of the adult institutions division of the corrections department or the director's designee.
J. In order to be eligible for meritorious deductions, a prisoner confined in a federal or out-of-state correctional facility designated by the corrections department must actively participate in programs that are available. If a federal or out-of-state correctional facility does not have programs available for a prisoner, the prisoner may be awarded meritorious deductions at the rate the prisoner could have earned meritorious deductions if the prisoner had actively participated in programs.
K. A prisoner confined in a correctional facility in New Mexico that is operated by a private company, pursuant to a contract with the corrections department, is eligible to earn meritorious deductions in the same manner as a prisoner confined in a state-run correctional facility. All decisions regarding the award or forfeiture of meritorious deductions at such facilities are subject to final approval by the director of the adult institutions division of the corrections department or the director's designee.
L. As used in this section:
(1) "active participant" means a prisoner who has begun, and is regularly engaged in, approved programs;
(2) "program" means work, vocational, educational, substance abuse and mental health programs, approved by the classification supervisor, that contribute to a prisoner's self-betterment through the development of personal and occupational skills. "Program" does not include recreational activities;
(3) "nonviolent offense" means any offense other than a serious violent offense; and
(4) "serious violent offense" means:
(a) second degree murder, as provided in Section 30-2-1 NMSA 1978;
(b) voluntary manslaughter, as provided in Section 30-2-3 NMSA 1978;
(c) third degree aggravated battery, as provided in Section 30-3-5 NMSA 1978;
(d) third degree aggravated battery against a household member, as provided in Section 30-3-16 NMSA 1978;
(e) first degree kidnapping, as provided in Section 30-4-1 NMSA 1978;
(f) first and second degree criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978;
(g) second and third degree criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978;
(h) first and second degree robbery, as provided in Section 30-16-2 NMSA 1978;
(i) second degree aggravated arson, as provided in Section 30-17-6 NMSA 1978;
(j) shooting at a dwelling or occupied building, as provided in Section 30-3-8 NMSA 1978;
(k) shooting at or from a motor vehicle, as provided in Section 30-3-8 NMSA 1978;
(l) aggravated battery upon a peace officer, as provided in Section 30-22-25 NMSA 1978;
(m) assault with intent to commit a violent felony upon a peace officer, as provided in Section 30-22-23 NMSA 1978;
(n) aggravated assault upon a peace officer, as provided in Section 30-22-22 NMSA 1978; or
(o) any of the following offenses, when the nature of the offense and the resulting harm are such that the court judges the crime to be a serious violent offense for the purpose of this section: 1) involuntary manslaughter, as provided in Section 30-2-3 NMSA 1978; 2) fourth degree aggravated assault, as provided in Section 30-3-2 NMSA 1978; 3) third degree assault with intent to commit a violent felony, as provided in Section 30-3-3 NMSA 1978; 4) fourth degree aggravated assault against a household member, as provided in Section 30-3-13 NMSA 1978; 5) third degree assault against a household member with intent to commit a violent felony, as provided in Section 30-3-14 NMSA 1978; 6) third and fourth degree aggravated stalking, as provided in Section 30-3A-3.1 NMSA 1978; 7) second degree kidnapping, as provided in Section 30-4-1 NMSA 1978; 8) second degree abandonment of a child, as provided in Section 30-6-1 NMSA 1978; 9) first, second and third degree abuse of a child, as provided in Section 30-6-1 NMSA 1978; 10) third degree dangerous use of explosives, as provided in Section 30-7-5 NMSA 1978; 11) third and fourth degree criminal sexual penetration, as provided in Section 30-9-11 NMSA 1978; 12) fourth degree criminal sexual contact of a minor, as provided in Section 30-9-13 NMSA 1978; 13) third degree robbery, as provided in Section 30-16-2 NMSA 1978; 14) third degree homicide by vehicle or great bodily harm by vehicle, as provided in Section 66-8-101 NMSA 1978; or 15) battery upon a peace officer, as provided in Section 30-22-24 NMSA 1978.
M. Except for sex offenders, as provided in Section 31-21-10.1 NMSA 1978, an offender sentenced to confinement in a correctional facility designated by the corrections department who has been released from confinement and who is serving a parole term may be awarded earned meritorious deductions of up to thirty days per month upon recommendation of the parole officer supervising the offender, with the final approval of the adult parole board. The offender must be in compliance with all the conditions of the offender's parole to be eligible for earned meritorious deductions. The adult parole board may remove earned meritorious deductions previously awarded if the offender later fails to comply with the conditions of the offender's parole. The corrections department and the adult parole board shall promulgate rules to implement the provisions of this subsection. This subsection applies to offenders who are serving a parole term on or after July 1, 2004.
History: 1978 Comp., § 33-2-34, enacted by Laws 1999, ch. 238, § 1; 2003 (1st S.S.), ch. 1, § 13; 2004, ch. 75, § 1; 2006, ch. 82, § 1; 2015, ch. 122, § 17.
ANNOTATIONSRepeals and reenactments. — Laws 1978, ch. 40, § 1, repealed 42-1-55, 1953 Comp. (former 33-2-34 NMSA 1978), relating to meritorious deductions, and enacted a new 33-2-34 NMSA 1978.
Laws 1999, ch. 238, § 1 repealed 33-2-34 NMSA 1978, as amended by 1988, ch. 78, § 4, and enacted a new section, effective July 1, 1999.
The 2015 amendment, effective July 1, 2015, replaced the term "general education diploma" with "high school equivalency credential" in the provision relating to meritorious deductions for prisoners confined in a correctional facility, clarified that this section shall not be interpreted as to provide earned meritorious deductions for a life sentence without the possibility of parole, and removed the reference to "a sentence of death" relating to earned meritorious deductions; in Paragraph (1) of Subsection D, after "successfully earning a", deleted "general education diploma" and added "high school equivalency credential"; in Paragraph (2) of Subsection D, after "for earning a", deleted "general education diploma" and added "high school equivalency credential"; in Paragraph (6) of Subsection D, after "great expense", added "or", after "risk", added "to", after "or", added "involves great", and after "effort on", deleted "behalf" and added "the part"; in Subsection G, after "life imprisonment or a sentence of", deleted "death" and added "life imprisonment without possibility of release or parole"; in Subparagraph L(4)(n), after "NMSA 1978", deleted "and" and added "or"; and in Subparagraph L(4)(o), after "third degree homicide by vehicle or great bodily", deleted "injury" and added "harm", and after "Section 66-8-101 NMSA 1978;", deleted "and" and added "or".
The 2006 amendment, effective July 1, 2006, changed "committee" to "supervisor"; changes "warden" to "warden or the warden's designee" and changes "corrections department" to "corrections department or the director's designee" throughout the section; provided in Subparagraph (a) of Paragraph (4) of Subsection A that meritorious deductions shall not exceed eight days per month if the prisoner was convicted of a serious violent offense or failed to pass a drug test administered as a condition of parole; added Subparagraph (b) of Paragraph (4) of Subsection A to provide that meritorious deductions shall not exceed eight days per month up to a maximum of thirty days per month of time served during parole following revocation if the prisoner was convicted of a nonviolent offense; provided in Paragraph (3) of Subsection F that a prisoner is not eligible to earn deductions if the prisoner is confined for committing a serious violent offense; added Subparagraph (d) of Paragraph (4) of Subsection L to provide aggravated battery against a household member; provided in Subparagraph (o) (formerly Subparagraph (n)) of Paragraph (4) of Subsection L aggravated assault against a household member; and provided in Subsection M that this subsection applies to offenders who are serving a parole term on or after July 1, 2004.
The 2004 amendment, effective July 1, 2004, added Subsection M.
The 2003 (1st S.S.) amendment, effective February 3, 2004, substituted "the director's" for "his" preceding "designee" near the end of the last sentences of Subsections I and K, and added "second and" at the beginning of Subparagraph (4)(f) of Subsection L.
I. GENERAL CONSIDERATION.
Notice. — The statute itself provides notice to a defendant that he could be subject to that provision of the Earned Meritorious Deduction Act (EMDA) statute. State v. Cooley, 2003-NMCA-149, 134 N.M. 717, 82 P.3d 84, cert. quashed, 135 N.M. 789, 93 P.3d 1294.
Application to incarceration for probation revocation. — Earned meritorious deductions are applicable to the period of incarceration for revocation of probation. Garcia v. Dorsey, 2006-NMSC-052, 140 N.M. 746, 149 P.3d 62.
The crime of attempted first degree criminal sexual penetration is not subject to earned credit diminution. State v. Loretto, 2006-NMCA-142, 140 N.M. 705, 147 P.3d 1138.
The meritorious deduction rate for the underlying felony applies to the entire enhanced sentence imposed under the Habitual Offender Act. Vallejos v. Marquez, 2008-NMSC-003, 143 N.M. 357, 176 P.3d 1089.
Factors allowing judge to limit credit. — The factors that the Earned Meritorious Deduction Act allows the judge to find in order to limit credit under Subsection L(4)(n) (now L(4)(o) of this section 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.
Conviction as accessory. — Where defendant was convicted of violating 30-3-8 NMSA 1978 as an accessory to the crime and the crime is one enumerated in Subsection L(4)(j) (now L(4)(o)of this section, the fact that he pleaded guilty as an accessory and not as a principal is irrelevant for purposes of the Earned Meritorious Deductions Act. State v. Flores, 2005-NMCA-092, 138 N.M. 61, 116 P.3d 852, cert. denied, 2005-NMCERT-007, 138 N.M. 145, 117 P.3d 951.
Because this section does not increase the maximum sentence but rather specifies how it may be decreased by good conduct, the court's failure to inform the defendant of the possible application of this section during the plea hearing was not a failure to advise him of his maximum possible sentence. State v. Andazola, 2003-NMCA-146, 134 N.M. 710, 82 P.3d 77.
Mitigation concerns the manner of the commission of an offense, not the nature of the offense itself and factors that support mitigating a sentence do not alter the nature of the offense. The existence of mitigating factors concerning the manner in which the crime was committed is separate from the determination that the offense is a serious violent offense. A finding of mitigating factors that causes the district court to reduce defendant's sentence does not preclude the district court from finding that the crime was a serious violent offense. State v. Ayala, 2006-NMCA-088, 140 N.M. 126, 140 P.3d 547, cert. denied, 2006-NMCERT-007, 140 N.M. 279, 142 P.3d 360.
Discretion of administrators. — Deduction of good time credits from an inmate's sentence is a discretionary matter entrusted not to the courts but to the administrators of the corrections department or the county jails. State v. Aqui, 1986-NMSC-048, 104 N.M. 345, 721 P.2d 771, cert. denied, 479 U.S. 917, 107 S. Ct. 321, 93 L. Ed. 2d 294 (1986).
Effect of change of law. — Where defendant was charged with nine counts of criminal sexual penetration over a period from June 1997 through December 1999, none of the counts was specifically limited to a particular time, the state was unable to specify a time period for particular acts during the guilt phase, and the jury was presented with evidence of a number of acts that occurred over two and a half years and was not asked to specify that one act occurred after July 1, 1999, the verdict was inadequate to support a conclusion that defendant committed an act occurring after July 1, 1999 when an amendment to the statute decreasing the earned meritorious deduction became effective. State v. Salazar, 2006-NMCA-066, 139 N.M. 603, 136 P.3d 1013, cert. quashed, 2007-NMCERT-004, 141 N.M. 568, 158 P.3d 458.
II. GOOD TIME CREDIT.
Good time credit for serious youthful offender. — The district court may limit good time credit eligibility under the Earned Meritorious Deductions Act when sentencing a serious youthful offender to less than a life sentence upon a conviction for first degree murder. State v. Tafoya, 2010-NMSC-019, 148 N.M. 391, 237 P.3d 693.
Where defendant pled guilty to first degree murder and was sentenced as a serious youthful offender to thirty years imprisonment, with ten years suspended, the court had the discretion to limit defendant's good time credit eligibility to four days per month. State v. Tafoya, 2010-NMSC-019, 148 N.M. 391, 237 P.3d 693.
Determination of good time credit by the court. — Where the defendant was convicted of first-degree murder, attempted first-degree murder and tampering with evidence, the trial court improperly provided in its judgment that the defendant "must serve eighty-five percent (85%) of the above sentence pursuant to Section 33-2-34L(4)". There is no provision in the EMDA or any other New Mexico statute that requires a prisoner to serve 85% of any sentence, although the EMDA's four days per month limit on good time awards relating to serious violent offenses results in a prisoner having to serve between 86.85% and 100% of his stated sentence. State v. Rudolfo, 2008-NMSC-036, 144 N.M. 305, 187 P.3d 170.
Constitutionality of good time credit scheme. — New Mexico's good time credit statutory scheme does not offend the constitutional guarantee of equal protection of the law; it is reasonable not to award good time credits for presentence confinement to detainees who are presumed innocent and therefore are not yet subject to rehabilitation efforts or to compulsory labor requirements, especially when they are held without systematic evaluation in county jails lacking rehabilitation programs. State v. Aqui, 1986-NMSC-048, 104 N.M. 345, 721 P.2d 771, cert. denied, 479 U.S. 917, 107 S. Ct. 321, 93 L. Ed. 2d 294 (1986).
New Mexico's statutory scheme making prisoners eligible for awards of good time credits for the periods of their post-sentencing confinement in correction department facilities and county jails but not for the periods of their presentence confinement in county jails does not offend the due process guarantees of the New Mexico and United States constitutions. State v. Aqui, 1986-NMSC-048, 104 N.M. 345, 721 P.2d 771, cert. denied, 479 U.S. 917, 107 S. Ct. 321, 93 L. Ed. 2d 294 (1986).
This section serves a rational purpose of rehabilitating criminals, and is not unconstitutional. Lemieux v. Kerby, 931 F.2d 1391 (10th Cir. 1991).
Good-time credits apply only to noncapital crimes. The legislature intended that only inmates convicted of noncapital crimes receive the benefit of good-time credits, inasmuch as this section describes meritorious deductions as pertaining to "basic" and "enhanced" sentences, and the relevant provisions of the Criminal Sentencing Act only describe noncapital felonies as having basic and enhanced sentences. Compton v. Lytle, 2003-NMSC-031, 134 N.M. 586, 81 P.3d 39, superseded by statute, State v. Tafoya, 2010-NMSC-019, 148 N.M. 391, 237 P.3d 693.
"Good time" credits deducted from maximum unsuspended portion of sentence. — "Good time" credits shall be allowed to be deducted from the maximum unsuspended portion of a sentence for purposes of determining entitlement of right to release from imprisonment where other provisions of the law do not circumscribe the minimum imprisonment to be served. Coutts v. Cox, 1966-NMSC-027, 75 N.M. 761, 411 P.2d 347.
"Good time" credits deducted from minimum sentence for parole purposes. — "Good time" credits shall be allowed to be deducted from the minimum sentence for purposes of determining eligibility for parole. Coutts v. Cox, 1966-NMSC-027, 75 N.M. 761, 411 P.2d 347.
Service of an inmate's minimum sentence, less "good time," merely renders him eligible to parole, but does not entitle him to final discharge. 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).
Good conduct credits deducted from maximum sentence. — Credits for good conduct are to be deducted from the maximum rather than the minimum sentence in determining when a prisoner is entitled to a full release as a matter of right. 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).
Earned meritorious deductions do not apply to reduce probation sentences. — The plain language of the Earned Meritorious Deductions Act only directly manifests a legislative intent that meritorious deductions be earned by offenders who are currently incarcerated, incarcerated following parole revocation, or who have been released on parole. State v. Ortiz, 2015-NMCA-020, cert. denied, 2015-NMCERT-001.
Where defendant was serving probation on one sentence while he was serving a period of incarceration on another sentence, the district court did not err in determining that the Earned Meritorious Deductions Act did not apply to probation, and that defendant was not entitled to earned meritorious deductions while serving a period of probation, even if he was serving the period of probation during a period of incarceration on another sentence. State v. Ortiz, 2015-NMCA-020, cert. denied, 2015-NMCERT-001.
Earned meritorious deductions do not apply to reduce probation sentences. — The plain language of the Earned Meritorious Deductions Act only directly manifests a legislative intent that meritorious deductions be earned by offenders who are currently incarcerated, incarcerated following parole revocation, or who have been released on parole. State v. Ortiz, 2015-NMCA-020, cert. denied, 2015-NMCERT-001.
Where defendant was serving probation on one sentence while he was serving a period of incarceration on another sentence, the district court did not err in determining that the Earned Meritorious Deductions Act did not apply to probation, and that defendant was not entitled to earned meritorious deductions while serving a period of probation, even if he was serving the period of probation during a period of incarceration on another sentence. State v. Ortiz, 2015-NMCA-020, cert. denied, 2015-NMCERT-001.
Forfeiture of credits. — This section and 33-2-36 NMSA 1978 confer an entitlement to good-time credits, and this entitlement may be divested only when the statutory and administrative procedures relating to those credits have been followed. Brooks v. Shanks, 1994-NMSC-113, 118 N.M. 716, 885 P.2d 637.
The language of this section and in 33-2-36 NMSA 1978 gives prisoners the right not to be subjected to a forfeiture or termination of good-time credits unless the appropriate procedures are followed. If those procedures, which include obtaining the committee's recommendation and the warden's approval, are circumvented, a due process violation occurs. Brooks v. Shanks, 1994-NMSC-113, 118 N.M. 716, 885 P.2d 637.
Application of good time credits. — Deleting the references to "basic" and "enhanced" in this section after 1999 does not appear to change how good time credits are applied. On their face, now as then, good time credits are applied to the entire sentence. LaVoy v. Snedeker, ____ F.Supp. ____ (D.N.M. 2004).
This section does not create a liberty interest. LaVoy v. Snedeker, ____ F.Supp. ____ (D.N.M. 2004).
III. SERIOUS VIOLENT OFFENSE.
Negligent child abuse as a serious violent offense. — Negligent child abuse qualifies as a serious violent offense where there is grossly negligent conduct that poses a substantial risk of serious harm to children. State v. Schoonmaker, 2005-NMCA-012, 136 N.M. 749, 105 P.3d 302, rev'd on other grounds, 2008-NMSC-010, 143 N.M. 373, 176 P.3d 1105.
Failure to stop and render aid after vehicular homicide. — Where defendant, who was driving under the influence of alcohol, struck a pedestrian at night on a busy street, knocking the pedestrian into oncoming lanes of traffic; defendant immediately left the scene; defendant plead guilty to vehicular homicide; there was no evidence of speeding or reckless driving before the accident, the court did not abuse its discretion in determining that the offense was a serious violent offense based solely on the fact that by failing to stop and render aid, defendant had left the victim in danger of being hit by other vehicles at a time when defendant did not know the victim's condition. State v. Lavone, 2011-NMCA-084, 150 N.M. 473, 261 P.3d 1105, cert. denied, 2011-NMCERT-007, 268 P.3d 46.
Third degree vehicular homicide as a serious violent offense. — Where defendant drove recklessly while intoxicated and struck and killed the victim with defendant's vehicle, the district court found that defendant had a history of alcohol abuse along with a prior criminal history involving alcohol-related offenses and that defendant recklessly crossed the center line and struck the victim who was on a bicycle with sufficient force to propel the victim through the air and into the bed of defendant's truck, the district court's findings were sufficient to support a serious violent offender offense designation. State v. Solano, 2009-NMCA-098, 146 N.M. 831, 215 P.3d 769, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358.
Where defendant drove recklessly while intoxicated, crossed the center line and struck the victim on a bicycle at such a rate of speed that the victim was thrown over defendant's truck and into the bed of the truck; defendant had a long history of alcohol abuse and previous experience with injuring a person because of alcohol impairment; and defendant disregarded advice to refrain from driving while under the influence, the evidence was sufficient to establish that defendant committed the homicide in a physically violent manner with recklessness in the face of knowledge that defendant's acts were reasonably likely to result in serious harm and to support a serious violent offense designation. State v. Solano, 2009-NMCA-098, 146 N.M. 831, 215 P.3d 769, cert. denied, 2009-NMCERT-007, 147 N.M. 361, 223 P.3d 358.
Homicide by vehicle. — Where defendant drove a pickup on a residential street toward a group of children who were trick-or-treating on Halloween; the chaperone pushed the children out of the way but was struck and killed; defendant stopped the vehicle and then left the scene of the accident; the group was visible to motorists; defendant altered defendant's course and drove toward the group and increased defendant's speed; defendant was driving on a suspended license; defendant had been drinking; defendant had four previous convictions of DWI; and defendant was convicted of homicide by vehicle, the district court did not err in determining that the conviction was a serious offense. State v. Melendrez, 2014-NMCA-062, cert. denied, 2014-NMCERT-006.
Required findings. — Findings that merely set forth facts, without connecting the facts to the requirement that the offense was committed in a physically violent manner either with an intent to do serious harm or with recklessness in the face of knowledge that one's acts are reasonably likely to result in serious harm, do not satisfy the statutory requirement and do not justify a determination that an offense is a serious violent offense. State v. Scurry, 2007-NMCA-064, 141 N.M. 591, 158 P.3d 1034.
Findings required to support determination that an offense is a serious violent offense. — The district court's determination that an offense is a serious violent offense must be supported by findings that reflect that the crime was committed in a physically violent manner and that defendant either intended to do serious harm or that defendant's actions involved recklessness in the face of knowledge that his acts were reasonably likely to result in serious harm. State v. Loretto, 2006-NMCA-142, 140 N.M. 705, 147 P.3d 1138.
No right to jury trial on serious violent offense determination. — Defendant, whose sentence was designated as a serious violent offense under 31-18-15 and 66-8-101 NMSA 1978, was not entitled to a jury trial to determine whether the offense was a serious violent offense because the serious violent offense statute imposes a mandatory increased minimum sentence, not the maximum sentence for the offense. State v. Worrick, 2006-NMCA-035, 139 N.M. 247, 131 P.3d 97, cert. quashed 2007-NMCERT-008, 142 N.M. 434, 166 P.3d 1088.
Constitutionality of procedure. — It is constitutional under the Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), standard for a judge, rather than a jury, to make the finding that an offense is a "serious violent offense" under this section. State v. Morales, 2002-NMCA-016, 131 N.M. 530, 39 P.3d 747, cert. denied, 131 N.M. 738, 42 P.3d 843.
Where defendant pleaded no contest to the offense of intentional child abuse resulting in death, the district court could classify defendant's acts as a "serious violent offense" without violating the United States Supreme Court opinions in Apprendi and Blakely. State v. Bravo, 2006-NMCA-019, 139 N.M. 93, 128 P.3d 1070, cert. quashed, 2006-NMCERT-011, 140 N.M. 845, 149 P.3d 942.
Standard to find a "serious violent offense". — In order for a judge to make a finding qualifying an offense as seriously violent the judge must find the intent to do serious harm or knowledge that the acts were reasonably likely to cause serious harm. State v. Morales, 2002-NMCA-016, 131 N.M. 530, 39 P.3d 747, cert. denied, 131 N.M. 738, 42 P.3d 843.
District court must explain its conclusions regarding a serious violent offense designation. — Where defendant was convicted of aggravated assault with a deadly weapon, the district court's failure to make specific findings that defendant's offense was seriously violent was error, because a district court must make express findings to demonstrate that the crime was committed in a physically violent manner either with an intent to do serious harm or with recklessness in the face of knowledge that one's acts are reasonably likely to result in serious harm. State v. Branch, 2018-NMCA-031, replacing 2016-NMCA-071, 387 P.3d 250, cert. denied.
District court must make specific findings to qualify an offense as seriously violent. — A district court must make express findings to demonstrate that the crime was committed in a physically violent manner either with an intent to do serious harm or with recklessness in the face of knowledge that one's acts are reasonably likely to result in serious harm, so where defendant was convicted of aggravated assault with a deadly weapon, the district court's failure to make specific findings that defendant's offense was seriously violent was error. State v. Branch, 2016-NMCA-071, 387 P.3d 250, replaced by 2018-NMCA-031, and cert. quashed.
Crime not listed in definition may not be considered "serious violent offense." — Conspiracy to commit armed robbery is neither an enumerated offense that satisfies the definition of "serious violent offense" as a matter of law, nor is it one of the additional offenses that a judge may determine to be a serious violent offense. Therefore, a district court is not authorized to limit a defendant's good time credit for a conviction of conspiracy to commit armed robbery. 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.
Aggravated battery on household member not "serious violent offense". — Because the district court's authority to classify a defendant as a serious violent offender derives from this section and this section does not list aggravated battery on a household member, 30-3-16 NMSA 1978 (now 33-2-34L(4)(d) NMSA 1978), as such an offense, the court erred in classifying defendant's conviction under that section as a serious violent offense. State v. Bennett, 2003-NMCA-147, 134 N.M. 705, 82 P.3d 72, cert. granted, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668 (decided under prior law).
Vehicular homicide. — The trial court could reasonably conclude that vehicular homicide in violation of 66-8-101 NMSA 1978 was a serious violent offense where, in addition to other evidence, it considered information contained in the presentence report that the vehicular homicide was the fourth time that the defendant had been arrested for an alcohol-related driving offense and that he had two previous convictions for DWI. State v. Wildgrube, 2003-NMCA-108, 134 N.M. 262, 75 P.3d 862, cert. denied, 134 N.M. 179, 74 P.3d 1071.
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. 434, 166 P.3d 1088.
"Good time" earned under these statutes may only be deducted from the maximum and not the minimum of the sentence. 1955 Op. Att'y Gen. No. 55-6156.
"Good time" applied for purposes of final discharge. — The "good time" statute is still in effect but it is to be applied only for purposes of final discharge and only as a deduction from the maximum sentence. Release, therefore, may be only upon parole and upon action of the parole board. 1955 Op. Att'y Gen. No. 55-6156.
Prisoners transferred to penitentiary given "good time" credit. — Prisoners transferred from the reform school to the penitentiary are to be given good time credit on the whole time of sentence. 1929 Op. Att'y Gen. No. 29-99.
"Good time" deductions allowed while on parole. — Until finally discharged, a prisoner is upon parole, and deductions for good time may be allowed while the prisoner is on parole. 1937 Op. Att'y Gen. 37-1653.
Law reviews. — For comment, "Definitive Sentencing in New Mexico: The 1977 Criminal Sentencing Act," see 9 N.M.L. Rev. 131 (1978-79).