HOUSE BILL 297

51st legislature - STATE OF NEW MEXICO - first session, 2013

INTRODUCED BY

William "Bill" R. Rehm

AN ACT

RELATING TO CRIMINAL SENTENCING; INCREASING THE PENALTIES FOR A FELON POSSESSING A FIREARM; INCREASING THE PENALTIES FOR STEALING A FIREARM; INCREASING THE SENTENCING ENHANCEMENTS FOR USE OF A FIREARM IN A NONCAPITAL FELONY.

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

     SECTION 1. Section 30-7-16 NMSA 1978 (being Laws 1981, Chapter 225, Section 1, as amended) is amended to read:

     "30-7-16. FIREARMS OR DESTRUCTIVE DEVICES--RECEIPT, TRANSPORTATION OR POSSESSION BY A FELON--PENALTY.--

          A. It is unlawful for a felon to receive, transport or possess any firearm or destructive device in this state.

          B. [Any person violating the provisions of this section shall be guilty of a fourth degree felony and shall be sentenced in accordance with the provisions of the Criminal Sentencing Act.] A person who violates the provisions of this section is:

                (1) for the first offense, guilty of a third degree felony and shall be sentenced, notwithstanding the provisions of Section 31-18-15 NMSA 1978, to a minimum term of imprisonment of five years; and

                (2) for the second or subsequent offense, guilty of a second degree felony and shall be sentenced, notwithstanding the provisions of Section 31-18-15 NMSA 1978, to a minimum term of imprisonment of five years.

     The imposition of a minimum, mandatory term of imprisonment pursuant to the provisions of this subsection shall not be interpreted to preclude the imposition of sentencing enhancements pursuant to the provisions of the Criminal Sentencing Act.

          C. As used in this section:

                (1) "destructive device" means:

                     (a) any explosive, incendiary or poison gas: 1) bomb; 2) grenade; 3) rocket having a propellant charge of more than four ounces; 4) missile having an explosive or incendiary charge of more than one-fourth ounce; 5) mine; or 6) similar device;

                     (b) any type of weapon by whatever name known that will, or that may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell that is generally recognized as particularly suitable for sporting purposes; and

                     (c) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in this paragraph and from which a destructive device may be readily assembled.

     The term "destructive device" does not include any device that is neither designed nor redesigned for use as a weapon or any device, although originally designed for use as a weapon, that is redesigned for use as a signaling, pyrotechnic, line throwing, safety or similar device;

                (2) "felon" means a person convicted of a felony offense by a court of the United States or of any state or political subdivision thereof and:

                     (a) less than ten years have passed since the person completed serving [his] a sentence or period of probation for the felony conviction, whichever is later;

                     (b) the person has not been pardoned for the felony conviction by the proper authority; and

                     (c) the person has not received a deferred sentence; and

                (3) "firearm" means any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosion; the frame or receiver of any such weapon; or any firearm muffler or firearm silencer. "Firearm" includes any handgun, rifle or shotgun."

     SECTION 2. Section 30-16-1 NMSA 1978 (being Laws 1963, Chapter 303, Section 16-1, as amended) is amended to read:

     "30-16-1. LARCENY.--

          A. Larceny consists of the stealing of anything of value that belongs to another.

          B. Whoever commits larceny when the value of the property stolen is two hundred fifty dollars ($250) or less is guilty of a petty misdemeanor.

          C. Whoever commits larceny when the value of the property stolen is over two hundred fifty dollars ($250) but not more than five hundred dollars ($500) is guilty of a misdemeanor.

          D. Whoever commits larceny when the value of the property stolen is over five hundred dollars ($500) but not more than two thousand five hundred dollars ($2,500) is guilty of a fourth degree felony.

          E. Whoever commits larceny when the value of the property stolen is over two thousand five hundred dollars ($2,500) but not more than twenty thousand dollars ($20,000) is guilty of a third degree felony.

          F. Whoever commits larceny when the value of the property stolen is over twenty thousand dollars ($20,000) is guilty of a second degree felony.

          G. Whoever commits larceny when the property of value stolen is livestock is guilty of a third degree felony regardless of its value.

          H. Whoever commits larceny when the property of value stolen is a firearm is guilty of a fourth degree felony when its value is less than two thousand five hundred dollars ($2,500).

          I. If the property stolen is a firearm:

                (1) for a first offense, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 shall be increased by five years, and the sentence imposed by this subsection shall be the first five years served and shall not be suspended or deferred; and

                (2) for a second or subsequent offense, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 shall be increased by ten years, and the sentence imposed by this subsection shall be the first ten years served and shall not be suspended or deferred."

     SECTION 3. 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] five years, and the sentence imposed by this subsection shall be the first [year] five 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 [one year] five years.

          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] ten years, and the sentence imposed by this subsection shall be the first [three] ten 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] ten years.

          C. 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, 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, the court shall decide the issue and shall make a separate finding of fact thereon."

     SECTION 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2013.

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