HOUSE BILL 736

47th legislature - STATE OF NEW MEXICO - second session, 2006

INTRODUCED BY

Keith J. Gardner

AN ACT

RELATING TO CRIMINAL SENTENCING; PROVIDING FOR ENHANCEMENT OF A SENTENCE WHEN A FIREARM IS DISCHARGED WITHIN A SCHOOL ZONE DURING THE COMMISSION OF A FELONY.

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

     Section 1. Section 31-18-16 NMSA 1978 (being Laws 1977, Chapter 216, Section 5, as amended) is amended to read:

     "31-18-16. USE OF FIREARM--ALTERATION OF BASIC SENTENCE--SUSPENSION AND DEFERRAL LIMITED.--

          A. When a separate finding of fact by the court or jury shows that a firearm was used in the commission of a noncapital felony, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 shall be increased by one year, and the sentence imposed by this subsection shall be the first year served and shall not be suspended or deferred; provided that when the offender is a serious youthful offender or a youthful offender, the sentence imposed by this subsection may be increased by one year.

          B. For a second or subsequent noncapital felony in which a firearm is used, the basic sentence of imprisonment prescribed in Section 31-18-15 NMSA 1978 shall be increased by three years, and the sentence imposed by this subsection shall be the first three years served and shall not be suspended or deferred; provided that when the offender is a serious youthful offender or a youthful offender, the sentence imposed by this subsection may be increased by three years.

          C. If the firearm used in the commission of a noncapital felony is discharged within a school zone, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 shall be increased by two years, and the sentence imposed by this subsection shall be the first two years served and shall not be suspended or deferred; provided that when the offender is a serious youthful offender or a youthful offender, the sentence imposed by this subsection may be increased by two years.

          D. For a second or subsequent noncapital felony in which a firearm is discharged within a school zone, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 shall be increased by four years, and the sentence imposed by this subsection shall be the first four years served and shall not be suspended or deferred; provided that when the offender is a serious youthful offender or a youthful offender, the sentence imposed by this subsection may be increased by four years.

          [C.] E. If the case is tried before a jury and if a prima facie case has been established showing that a firearm was used in the commission of the offense or discharged within a school zone during the commission of the offense, the court shall submit the issue to the jury by special interrogatory. If the case is tried by the court and if a prima facie case has been established showing that a firearm was used in the commission of the offense or discharged within a school zone during the commission of the offense, the court shall decide the issue and shall make a separate finding of fact thereon.

          F. As used in this section, "school zone" means a public school, parochial school or private school or property that is used for school purposes and the area within one thousand feet of the school property line, but it does not mean a post-secondary school."

     Section 2. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2006.

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