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SPONSOR: |
Youngberg |
DATE TYPED: |
|
HB |
293 |
||
SHORT TITLE: |
Change Definition of “Violent Felony” |
SB |
|
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ANALYST: |
Fox-Young |
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APPROPRIATION
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
||
FY03 |
FY04 |
FY03 |
FY04 |
|
|
|
|
|
$0.1 Significant |
Recurring |
General
Fund |
|
|
|
|
|
|
(Parenthesis
( ) Indicate Expenditure Decreases)
Responses
Received From
Department
of Public Safety (DPS)
Administrative
Office of the Courts (AOC)
Attorney
General (AG)
Administrative
Office of the District Attorneys (AODA)
Corrections
Department (CD)
Public
Defender Department (PDD)
SUMMARY
Synopsis
of Bill
House Bill 293 moves the definition of “great bodily harm” from Section 31-18-23 to Section 31-18-15.2. “Great bodily harm” means an injury to a person that creates a high probability of death or that causes serious disfigurement or that results in permanent loss or impairment of the function of any member or organ of the body.
The bill amends Section 31-18-23, the section that establishes a mandatory life sentence for a third violent felony conviction. Currently, the statute defines "violent felony" by listing the criminal offenses that qualify as violent felonies. These are:
This bill strikes the
current list of felonies, redefining "violent felony" in Sections
31-18-23 and 31-18-24 to mean any first or second-degree felony that involves
the use or threatened use of force or violence.
Significant
Issues
The Attorney General
(AG) notes that the provisions of the bill, in conjunction with Section
31-18-24, “Violent Felony Sentencing Procedure,” create the potential for a
constitutional challenge to the statute under Apprendi
v.
“The court shall conduct a separate sentencing proceeding to determine any controverted question of fact regarding whether the defendant has been convicted of three violent felonies. Either party to the action may demand a jury trial….In the case of a plea of guilty, the sentencing proceeding shall be conducted…by a jury upon demand of the defendant.” (Emphasis added)
Under the changes
proposed by this bill, a prosecutor could seek a life sentence for a conviction
for a first or second-degree felony committed by a defendant with two prior
felony convictions. In such a case, a
jury determination including findings that the felonies were committed with the
use or threatened use of force or violence, would be necessary. If a defendant does not demand a jury and the
judge imposes a life sentence, the changes proposed in this bill could result
in a constitutional violation under Apprendi.
AG reports that under
the current statute, a defendant's failure to demand a jury determination would
not result in an Apprendi violation because,
when a defendant is convicted of one of the listed offenses that are by
definition violent felonies, the requirement of a jury determination of the
commission of a violent felony has been met.
(SEE ALSO TECHNICAL ISSUES)
FISCAL IMPLICATIONS
The Administrative Office of the Courts (AOC) notes that Section 31-18-23(B) NMSA requires there to be a separate sentencing hearing during which the sentence of life imprisonment shall be imposed. AOC indicates that as the definition of “violent felony” is broadened, the number of defendants subject to life imprisonment after a third violent felony will increase, resulting in additional hearings and cost increases for courts, district attorneys and PDD.
It is likely that the appellate caseload will increase, driving up costs for the AG, courts and PDD.
The Corrections Department (CD) notes that the bill will likely have the effect of increasing the prison population, resulting in increased costs to the department. CD also notes that as inmates serving life sentences age, the costs of medical care will likely increase significantly.
CONFLICT
TECHNICAL ISSUES
If it is the Legislature’s intent to expand the
list of crimes that would render a defendant eligible for a life sentence upon
his third conviction, AG proposes two alternatives that would avoid the Apprendi problem.
1) Add offenses to the current list of violent felonies or 2) Enact the
changes proposed by this bill, at the same time amending Section 31-18-24 to
require a jury trial at the sentencing hearing unless the defendant waives the
jury. (SEE ALSO SIGNIFICANT ISSUES)
AOC notes that the current definition for “violent felony” is applicable to the entire Criminal Sentencing Act, but the definition provided by the bill is specific to Sections 31-18-23 and 31-18-24. AOC notes that a definition of “violent felony” should accompany its use in other areas of the Act.
JCF/ls