46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO CRIMINAL SENTENCING; PROVIDING A COURT WITH AUTHORITY TO DEPART FROM THE IMPOSITION OF A MANDATORY SENTENCE FOR A HABITUAL OFFENDER; AMENDING A SECTION OF THE NMSA 1978.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 31-18-17 NMSA 1978 (being Laws 1977, Chapter 216, Section 6, as amended) is amended to read:

"31-18-17. HABITUAL OFFENDERS--ALTERATION OF BASIC SENTENCE.--

A. [Any] A person convicted of a noncapital felony in this state, whether within the Criminal Code or the Controlled Substances Act or not, who has incurred one prior felony conviction that was part of a separate transaction or occurrence or conditional discharge under Section 31-20-13 NMSA 1978 is a habitual offender and his basic sentence shall be increased by one year. The sentence imposed pursuant to this subsection shall not be suspended or deferred, unless the court makes a specific finding that [the prior felony conviction and the instant felony conviction are both for nonviolent felony offenses and that] justice will not be served by imposing a mandatory sentence of imprisonment and that there are substantial and compelling reasons, stated on the record, for departing from the sentence imposed pursuant to this subsection.

B. [Any] A person convicted of a noncapital felony in this state, whether within the Criminal Code or the Controlled Substances Act or not, who has incurred two prior felony convictions that were parts of separate transactions or occurrences or conditional discharge under Section 31-20-13 NMSA 1978 is a habitual offender and his basic sentence shall be increased by four years [and the sentence imposed by this subsection shall not be suspended or deferred]. The sentence imposed pursuant to this subsection shall not be suspended or deferred, unless the court makes a specific finding that justice will not be served by imposing a mandatory sentence of imprisonment and that there are substantial and compelling reasons, stated on the record, for departing from the sentence imposed pursuant to this subsection.

C. [Any] A person convicted of a noncapital felony in this state, whether within the Criminal Code or the Controlled Substances Act or not, who has incurred three or more prior felony convictions that were parts of separate transactions or occurrences or conditional discharge under Section 31-20-13 NMSA 1978 is a habitual offender and his basic sentence shall be increased by eight years [and the sentence imposed by this subsection shall not be suspended or deferred]. The sentence imposed pursuant to this subsection shall not be suspended or deferred, unless the court makes a specific finding that justice will not be served by imposing a mandatory sentence of imprisonment and that there are substantial and compelling reasons, stated on the record, for departing from the sentence imposed pursuant to this subsection.

D. As used in this section, "prior felony conviction" means:

(1) a conviction [when less than ten years have passed prior to the instant felony conviction since the person completed serving his sentence or period of probation or parole for the prior felony, whichever is later] for a prior felony committed within New Mexico whether within the Criminal Code or not; or

(2) [any] a prior felony [when less than ten years have passed prior to the instant felony conviction since the person completed serving his sentence or period of probation or parole for the prior felony, whichever is later] for which the person was convicted other than an offense triable by court martial if:

(a) the conviction was rendered by a court of another state, the United States, a territory of the United States or the commonwealth of Puerto Rico;

(b) the offense was punishable, at the time of conviction, by death or a maximum term of imprisonment of more than one year; or

(c) the offense would have been classified as a felony in this state at the time of conviction.

[E. As used in this section, "nonviolent felony offense" means application of force, threatened use of force or a deadly weapon was not used by the offender in the commission of the offense.]"

Section 2. EFFECTIVE DATE.---The effective date of the provisions of this act is July 1, 2003.