N.M. Stat. § 31-18-15 (2026)

sentences and fines; parole authority; meritorious deductions.
    A. As used in a statute that establishes a noncapital felony, the following defined
felony classifications and associated basic sentences of imprisonment are as follows:

FELONY CLASSIFICATION                                         BASIC SENTENCE
first degree felony resulting in the death of a child         life imprisonment
first degree felony for aggravated criminal sexual
penetration                                                   life imprisonment
first degree felony                                           eighteen years imprisonment
second degree felony resulting in the death of a human
being                                                         eighteen years imprisonment
second degree felony for a sexual offense against a child     fifteen years imprisonment
second degree felony for sexual exploitation of children      twelve years imprisonment
second degree felony                                          nine years imprisonment
third degree felony resulting in the death of a human being   six years imprisonment
third degree felony for a sexual offense against a child      six years imprisonment
third degree felony for sexual exploitation of children       eleven years imprisonment
third degree felony                                           three years imprisonment
fourth degree felony for sexual exploitation of children      ten years imprisonment
fourth degree felony                                          eighteen months imprisonment.

    B. The appropriate basic sentence of imprisonment shall be imposed upon a person
convicted and sentenced pursuant to Subsection A of this section, unless the court
alters the sentence pursuant to the provisions of the Criminal Sentencing Act.

    C. A period of parole shall be imposed only for felony convictions wherein a person
is sentenced to imprisonment of more than one year, unless the parties to a proceeding
agree that a period of parole should be imposed. If a period of parole is imposed, the
court shall include in the judgment and sentence of each person convicted and
sentenced to imprisonment in a corrections facility designated by the corrections
department authority for a period of parole to be served in accordance with the
provisions of Section 31-21-10 NMSA 1978. If imposed, the period of parole shall be
deemed to be part of the sentence of the convicted person in addition to the basic
sentence imposed pursuant to Subsection A of this section together with alterations, if
any, pursuant to the provisions of the Criminal Sentencing Act.

    D. When a court imposes a sentence of imprisonment pursuant to the provisions of
Section 31-18-15.1, 31-18-16 or 31-18-17 NMSA 1978 and suspends or defers the
basic sentence of imprisonment provided pursuant to the provisions of Subsection A of
this section, the period of parole shall be served in accordance with the provisions of
Section 31-21-10 NMSA 1978 for the degree of felony for the basic sentence for which
the inmate was convicted. For the purpose of designating a period of parole, a court
shall not consider that the basic sentence of imprisonment was suspended or deferred
and that the inmate served a period of imprisonment pursuant to the provisions of the
Criminal Sentencing Act.

   E. The court may, in addition to the imposition of a basic sentence of imprisonment,
impose a fine not to exceed:

      (1)    for a first degree felony resulting in the death of a child, seventeen
thousand five hundred dollars ($17,500);

      (2)   for a first degree felony for aggravated criminal sexual penetration,
seventeen thousand five hundred dollars ($17,500);

       (3)    for a first degree felony, fifteen thousand dollars ($15,000);

      (4)    for a second degree felony resulting in the death of a human being, twelve
thousand five hundred dollars ($12,500);

      (5)    for a second degree felony for a sexual offense against a child, twelve
thousand five hundred dollars ($12,500);

      (6)    for a second degree felony for sexual exploitation of children, five
thousand dollars ($5,000);

       (7)    for a second degree felony, ten thousand dollars ($10,000);

      (8)    for a third degree felony resulting in the death of a human being, five
thousand dollars ($5,000);

       (9)    for a third degree felony for a sexual offense against a child, five thousand
dollars ($5,000);

       (10) for a third degree felony for sexual exploitation of children, five thousand
dollars ($5,000);
       (11)   for a third or fourth degree felony, five thousand dollars ($5,000); or

       (12) for a fourth degree felony for sexual exploitation of children, five thousand
dollars ($5,000).

    F. When the court imposes a sentence of imprisonment for a felony offense, the
court shall indicate whether or not the offense is a serious violent offense as defined in
Section 33-2-34 NMSA 1978. The court shall inform an offender that the offender's
sentence of imprisonment is subject to the provisions of Sections 33-2-34, 33-2-36, 33-
2-37 and 33-2-38 NMSA 1978. If the court fails to inform an offender that the offender's
sentence is subject to those provisions or if the court provides the offender with
erroneous information regarding those provisions, the failure to inform or the error shall
not provide a basis for a writ of habeas corpus.

   G. No later than October 31 of each year, the New Mexico sentencing commission
shall provide a written report to the secretary of corrections, all New Mexico criminal
court judges, the administrative office of the district attorneys and the chief public
defender. The report shall specify the average reduction in the sentence of
imprisonment for serious violent offenses and nonviolent offenses, as defined in Section
33-2-34 NMSA 1978, due to meritorious deductions earned by prisoners during the
previous fiscal year pursuant to the provisions of Sections 33-2-34, 33-2-36, 33-2-37
and 33-2-38 NMSA 1978. The corrections department shall allow the commission
access to documents used by the department to determine earned meritorious
deductions for prisoners.

History: 1953 Comp., § 40A-29-28, enacted by Laws 1977, ch. 216, § 4; 1979, ch.
152, § 1; 1980, ch. 38, § 1; 1981, ch. 285, § 1; 1987, ch. 139, § 3; 1993, ch. 38, § 1;
1993, ch. 182, § 1; 1994, ch. 23, § 3; 1999, ch. 238, § 5; 2003, ch. 75, § 4; 2003 (1st
S.S.), ch. 1, § 5; 2005, ch. 59, § 2; 2007, ch. 69, § 2; 2016, ch. 2, § 2; 2019, ch. 211, §
7; 2022, ch. 56, § 29; 2024, ch. 51, § 2; 2025, ch. 79, § 1.

                                     ANNOTATIONS

The 2025 amendment, effective June 20, 2025, removed the requirement that
offenders, as a condition of parole, pay for the costs of parole services after completion
of any actual time of imprisonment; and in Subsection C, after "Section 31-21-10 NMSA
1978" deleted "after the completion of any actual time of imprisonment and authority to
require, as a condition of parole, the payment of the costs of parole services and
reimbursement to a law enforcement agency or local crime stopper program in
accordance with the provisions of that section".

The 2024 amendment, effective May 15, 2024, increased the penalty for a second-
degree felony resulting in the death of a human being; and in Subsection A, after
"second degree felony resulting in the death of a human being", changed "fifteen" to
"eighteen".
The 2022 amendment, effective May 18, 2022, clarified noncapital felony sentencing
provisions; and in Subsection A, deleted "If a person is convicted of" and added "As
used in a statute that establishes", and added "following defined felony classifications
and associated", and after "basic", deleted "sentence" and added "sentences", and
deleted Paragraphs A(1) through A(13) and added the remainder of the subsection.

The 2019 amendment, effective July 1, 2019, required that parole shall be imposed
only for felony convictions where a person is sentenced to imprisonment for more than
one year, unless the parties to a proceeding agree that a period of parole should be
imposed; and in Subsection C, added "A period of parole shall be imposed only for
felony convictions wherein a person is sentenced to imprisonment of more than one
year, unless the parties to a proceeding agree that a period of parole should be
imposed. If a period of parole is imposed", and after the next period, added "If
imposed".

The 2016 amendment, effective February 25, 2016, created a new basic sentence
structure in the Criminal Sentencing Act for sexual exploitation of children offenses; in
Subsection A, added new Paragraph (6) and redesignated former Paragraphs (6), (7)
and (8) as Paragraphs (7), (8) and (9), respectively, added new Paragraph (10) and
redesignated former Paragraph (9) as Paragraph (11), in Paragraph (11), after the
semicolon, deleted "or", and added new Paragraph (12) and redesignated Paragraph
(10) as Paragraph (13); and in Subsection D, after "31-18-16", deleted "31-18-16.1"; in
Subsection E, added Paragraph (6) and redesignated former Paragraphs (6), (7) and
(8) as Paragraphs (7), (8) and (9), respectively, in Paragraph (9), after the semicolon,
deleted "or", added new Paragraph (10) and redesignated former Paragraph (9) as
Paragraph (11), in Paragraph (11), after the semicolon, added "or", and added new
Paragraph (12).

The 2007 amendment, effective July 1, 2007, imposed life imprisonment and a $17,500
fine for a first degree felony for aggravated criminal sexual penetration.

The 2005 amendment, effective June 17, 2005, added Subsection A(1) to impose a life
sentence for the conviction of a first degree felony resulting in the death of a child and
Subsection E(1) to impose a fine of seventeen thousand five hundred dollars for a first
degree felony resulting in the death of a child.

The 2003 (1st S.S.) amendment, effective February 3, 2004, inserted present
Paragraphs (3) and (6) and redesignated former Paragraphs (3) through (6) accordingly
in Subsection A, substituted “and sentenced pursuant to Subsection A of this section,
unless the court alters the” for “of a first, second, third or fourth degree felony or a
second or third degree felony resulting in the death of a human being, unless the court
alters such” in Subsection B, deleted “of a first, second, third or fourth degree felony or
a second or third degree felony resulting in the death of a human being” following
“convicted” near the beginning of the first sentence in Subsection C, and inserted
present Paragraphs (3) and (6) and redesignated former Paragraphs (3) through (5)
accordingly in Subsection E.
The 2003 amendment, effective July 1, 2003 in Subsection G substituted "New Mexico
sentencing commission" for "criminal and juvenile justice coordinating council" near the
beginning; and substituted "commission" for "coordinating council" near the end.

The 1999 amendment, effective July 1, 1999, added "meritorious deductions" to the
section heading and added Subsections F and G.

The 1994 amendment, effective July 1, 1994, in Subsection A, inserted Paragraphs (2)
and (4) and redesignated former Paragraphs (2) to (4) as Paragraphs (3), (5) and (6),
and deleted "or" at the end of Paragraph (5); inserted "or a second, third or fourth
degree felony resulting in the death of a human being" in Subsection B and in the first
sentence in Subsection C; and, in Subsection E, inserted Paragraphs (2) and (4) and
redesignated former Paragraphs (2) and (4) as Paragraphs (3) and (5).

The 1993 amendment, effective July 1, 1993, inserted Subsection D, and redesignated
former Subsection D as Subsection E. This section was also amended by Laws 1993,
ch. 38, § 1, effective July 1, 1993. The section was set out as amended by Laws 1993,
ch. 182, § 1. See 12-1-8 NMSA 1978.

                         I.     GENERAL CONSIDERATION.

The trial court has authority under Sections 31-18-15 and 31-18-15.1 NMSA 1978
to alter the basic sentence of life imprisonment for noncapital felonies if the court
finds any mitigating circumstances surrounding the offense or concerning the offender.
State v. Juan, 2010-NMSC-041, 148 N.M. 747, 242 P.3d 314.

Method for calculating one-third of a basic sentence of life imprisonment. — The
thirty-year term for parole eligibility is the proper numerical standard by which to
measure the trial court’s authority to alter a basic sentence of life imprisonment under
Sections 31-18-15 and 31-18-15.1 NMSA 1978. Because the trial court’s alteration
cannot exceed one-third of the basic sentence, the trial court lacks authority to reduce a
defendant’s parole eligibility by more than ten years. State v. Juan, 2010-NMSC-041,
148 N.M. 747, 242 P.3d 314.

A basic sentence of life imprisonment is subject to mitigation. — Unlike a capital
felony, a basic sentence of life imprisonment for a noncapital felony is not a mandatory
life sentence and is subject to mitigation. State v. Cabezuela, 2015-NMSC-016.

Where defendant was convicted of intentional child abuse resulting in the death of a
child under twelve, defendant was found guilty of a noncapital felony, and as a result,
the life sentence was basic, not mandatory, and the district court was required to
consider mitigation evidence before issuing a final sentence. State v. Cabezuela, 2015-
NMSC-016.

The trial court has authority to alter the basic sentence of all noncapital felonies.
— Sections 31-18-15 and 31-18-15.1 NMSA 1978 explicitly grant the trial court the
authority to alter the basic sentence for all noncapital felonies, including those that carry
a basic life sentence of life imprisonment. State v. Montoya, 2015-NMSC-010.

Where defendant was convicted of intentional child abuse resulting in the death of a
child under twelve, which carried a basic sentence of life imprisonment, and where the
district court believed that the law required a mandatory life sentence, the trial court
abused its discretion when it misunderstood its authority and obligation to consider
mitigating circumstances. State v. Montoya, 2015-NMSC-010.

State v. Wilson, 2001-NMCA-032, 130 N.M. 319, 24 P.3d 351 can no longer be
considered controlling authority regarding sentencing enhancements of basic
sentences. State v. Frawley, 2005-NMCA-017, 137 N.M. 18, 106 P.3d 580, overruled by
State v. Lopez, 2005-NMSC-036, 138 N.M. 526, 123 P.3d 754, overruled by State v.
Frawley, 2007-NMSC-057, 143 N.M. 7, 172 P.3d 144.

Fixing of penalties is a legislative function. State v. Hovey, 1975-NMCA-036, 87
N.M. 398, 534 P.2d 777; State v. Crespin, 1981-NMCA-095, 96 N.M. 640, 633 P.2d
1238.

The legislature establishes criminal penalties; the trial court's authority to sentence is
that which has been provided by law. State v. Wilson, 1982-NMCA-019, 97 N.M. 534,
641 P.2d 1081, cert. denied, 98 N.M. 50, 644 P.2d 1039.

Mandatory sentencing does not violate the doctrine of separation of powers
contained in N.M. Const., art. III, § 1. State v. Mabry, 1981-NMSC-067, 96 N.M. 317,
630 P.2d 269.

Correction of omission of mandatory provision. — Where a sentence lacks a
statutorily-mandated provision, the trial court retains jurisdiction to correct the sentence
by adding the omitted term. State v. Abril, 2003-NMCA-111, 134 N.M. 326, 76 P.3d 644,
cert. denied, 134 N.M. 320, 76 P.3d 638.

Factual finding of whether crime resulted "in the death of a human being" is for
the jury and not the judge to make, under Apprendi v. New Jersey, 530 U.S. 466 (2000).
State v. McDonald, 2003-NMCA-123, 134 N.M. 486, 79 P.3d 830, cert. granted, 2003-
NMCERT-001, 134 N.M. 612, 81 P.3d 555 (decided under prior law).

Conspiracy to commit murder. — Conspiracy to commit murder is a felony "resulting
in the death of a human being" within the meaning of this section. State v. Shije, 1998-
NMCA-102, 125 N.M. 581, 964 P.2d 142 (decided under prior law).

"Serious violent offense" finding mandatory. — The omission of any finding does
not satisfy the statutory requirement of Subsection F of this section of an affirmative
finding as to whether or not the defendant committed a serious violent offense. State v.
Abril, 2003-NMCA-111, 134 N.M. 326, 76 P.3d 644, cert. denied, 134 N.M. 320, 76 P.3d
638.
Serious violent offense. — 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. 436, 166 P.3d
1090.

Defendant must be afforded opportunity to speak before sentence pronounced.
— Section 31-18-15.1 NMSA 1978 extends the common-law doctrine of allocutus to
noncapital felonies, as enumerated in this section, and the trial judge must give the
defendant an opportunity to speak before he pronounces sentence; failure to do so
renders the sentence invalid. Tomlinson v. State, 1982-NMSC-074, 98 N.M. 213, 647
P.2d 415.

Victim restitution policy not limited to cases where sentences suspended or
deferred. — Section 31-17-1B NMSA 1978 contains no qualifying language limiting the
application of the policy of victim restitution only to those cases in which a sentence is
suspended or deferred. State v. Gross, 1982-NMCA-099, 98 N.M. 309, 648 P.2d 348,
cert. denied, 98 N.M. 336, 648 P.2d 794.

Mandatory probationary period may include restitution condition. — Section 31-
17-1B NMSA 1978 does not limit or restrict the application of restitution only to those
cases in which sentence is suspended or deferred. A mandatory probationary period
may be included in the defendant's sentence with the condition to make restitution to the
victim. State v. Ennis, 1982-NMCA-157, 99 N.M. 117, 654 P.2d 570, cert. denied, 99
N.M. 148, 655 P.2d 160.

Restitution mandatory when sentence suspended or deferred. — Section 31-17-1B
NMSA 1978 makes it mandatory to require victim restitution when a sentence is
deferred or suspended; the court has no discretion in such instances. State v. Gross,
1982-NMCA-099, 98 N.M. 309, 648 P.2d 348, cert. denied, 98 N.M. 336, 648 P.2d 794.

A fine is a sentence. State v. Aragon, 1979-NMCA-074, 93 N.M. 132, 597 P.2d 317.

Defendant sentenced under statute existing when crime was committed. — Where
defendant committed voluntary manslaughter before Indeterminate Sentence Act was
passed, but was convicted afterwards, defendant's sentencing under statute existing at
time crime was committed was proper. State v. Armstrong, 1956-NMSC-053, 61 N.M.
258, 298 P.2d 941.
Good behavior, indeterminate sentencing and parole laws are compatible and are
being administered right along together. 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).

No constitutional separation-of-powers infirmity in unrestricted period-of-parole
sentencing authority. — There is no constitutional separation-of-powers infirmity in the
legislature's grant to the judiciary of an unrestricted period-of-parole sentencing
authority, any more than there was in its grant to the parole board of the same power to
set whatever period of parole the board chose to impose. State v. Freeman, 1980-
NMCA-142, 95 N.M. 127, 619 P.2d 572, cert. denied, 95 N.M. 299, 621 P.2d 516.

Application to youthful offenders. — The basic sentences prescribed by this section
are "mandatory" within the meaning of Section 32A-2-20D NMSA 1978, while the
alterations in the basic sentences allowed by 31-18-15.1 NMSA 1978 are discretionary
and, therefore, circumscribed by the Children's Code (Section 32A-1-1 NMSA 1978 et
seq.); thus, the maximum sentence that may be imposed upon a youthful offender
convicted of a non-capital felony is the basic sentence prescribed by this section, plus, if
applicable, the enhancements prescribed by Sections 31-18-16 and 31-18-16.1 NMSA
1978 (repealed). State v. Guerra, 2001-NMCA-031, 130 N.M. 302, 24 P.3d 334, cert.
denied sub nom. State v. Ruby G., 130 N.M. 459 , 26 P.3d 103 (2001).

Applicability of parole to indeterminate sentencing. — The parole provisions of this
act apply to statutes such as Section 66-3-505 NMSA 1978 (now Section 30-16D-4
NMSA 1978) which prescribe an indeterminate period of imprisonment, and trial court
did not lack authority to impose the statutory term of parole of one year in addition to
discretionary two years confinement for transferring stolen vehicle. State v. Baker,
1993-NMCA-131, 116 N.M. 526, 864 P.2d 1277.

                             II.    JUDICIAL DISCRETION.

Subsection B is mandatory. — Subsection B of this section is mandatory and limits
the judge's sentencing discretion. State v. Lopez, 2005-NMSC-036, 138 N.M. 521, 123
P.3d 754, overruled by State v. Frawley, 2007-NMSC-057, 143 N.M. 7, 172 P.3d 144.

Trial court did not abuse its discretion in sentencing defendant pursuant to
Subsection A of this section and in accordance with a plea agreement. State v. Aker,
2005-NMCA-063, 137 N.M. 561, 113 P.3d 384, cert. denied, 2005-NMCERT-005, 137
N.M. 522, 113 P.3d 345.

No entitlement to mitigation. — Mitigation of a sentence depends solely on the
discretion of the district court and on no entitlement derived from any qualities of the
defendant. State v. Cumpton, 2000-NMCA-033, 129 N.M. 47, 1 P.3d 429, cert. denied,
128 N.M. 688, 997 P.2d 820.

There is no obligation on the part of a judge to depart from the basic sentence. —
Following defendant’s conviction for second-degree murder, the district court judge
heard from nine witnesses on defendant’s behalf, but declined to mitigate defendant’s
sentence. Defendant was entitled to no more than a sentence prescribed by law, and it
was within the district court’s discretion to decline to mitigate defendant’s sentence.
State v. Suskiewich, 2016-NMCA-004, cert. denied, 2015-NMCERT-011.

This section does not prohibit consecutive sentencing but leaves the issue to be
resolved under the common law which gives the court the discretion to order that
sentences be served concurrently or consecutively. State v. Jensen, 1998-NMCA-034,
124 N.M. 726, 955 P.2d 195.

Trial court is without authority to fix lesser sentence than that provided by statute.
State v. Beachum, 1970-NMCA-119, 82 N.M. 204, 477 P.2d 1019.

Imposition of sentence bars increased penalty. — After imposition of a valid
sentence, a court may not increase the penalty. State v. Crespin, 1981-NMCA-095, 96
N.M. 640, 633 P.2d 1238.

Impermissible to increase sentence because state failed to include "mitigation"
language in sentence. — The use of the state's failure to include "mitigation" language
in the judgment and sentence in order to later increase the defendant's sentence is
impermissible. The proper remedy is to file an amended judgment and sentence
containing the appropriate language. State v. Sisneros, 1981-NMCA-085, 98 N.M. 279,
648 P.2d 318, aff'd, 1984-NMSC-085, 101 N.M. 679, 687 P.2d 736, overruled on other
grounds by State v. Saavedra, 1988-NMSC-100, 108 N.M. 38, 766 P.2d 298.

Amendment of sentence to include mandatory parole period. — Where defendant's
initial sentence lacked a mandatory parole period, it was not an illegal enhancement of
the sentence for the court to amend the sentence to include the parole period even after
the defendant had been released from the penitentiary having served his basic
sentence of imprisonment. State v. Acuna, 1985-NMCA-083, 103 N.M. 279, 705 P.2d
685.

Credit toward parole for time served. — The parole board, not the sentencing court,
determines whether credit should be given toward a defendant's mandatory parole
period for any time served. State v. Martinez, 1989-NMCA-036, 108 N.M. 604, 775 P.2d
1321, cert. denied, 108 N.M. 624, 776 P.2d 846.

Execution of sentence bars imposition of additional punishment. — Once a
sentence is executed by the payment of a fine, the trial court lacks authority to impose
additional punishment upon defendant. State v. Aragon, 1979-NMCA-074, 93 N.M. 132,
597 P.2d 317.

Contradictory judgment renders sentence improper. — Where the trial court
deferred a sentence of imprisonment and imposed a sentence of a fine for the same
offense, either the deferral or the fine is subject to being stricken as an improper
sentence, and the execution of either part of the sentence renders the remaining part
void. State v. Aragon, 1979-NMCA-074, 93 N.M. 132, 597 P.2d 317.

Judges not authorized to limit eligibility for parole. — The legislature has not
authorized judges, in imposing sentence, to limit eligibility for parole, but rather has
authorized the state board of probation and parole to grant paroles consistent with
eligibility conditions established by the legislature; the judge may express his views
concerning a prospective parole but the final decision on parole shall be of the board.
State v. Hovey, 1975-NMCA-036, 87 N.M. 398, 534 P.2d 777.

A provision in the trial court's judgment that defendant who pleaded guilty of a fourth-
degree felony was not to be considered for parole for a minimum of one year was
beyond the court's sentencing authority, was not a valid part of defendant's sentence
and did not limit the authority of the state board of probation and parole to consider
defendant for parole. State v. Hovey, 1975-NMCA-036, 87 N.M. 398, 534 P.2d 777.

Applicability of parole to indeterminate sentencing. — The parole provisions of this
act apply to statutes such as Section 66-3-505 NMSA 1978 (now Section 30-16D-4
NMSA 1978) which prescribe an indeterminate period of imprisonment, and trial court
did not lack authority to impose the statutory term of parole of one year in addition to
discretionary two years confinement for transferring stolen vehicle. State v. Baker,
1993-NMCA-131, 116 N.M. 526, 864 P.2d 1277.

Refusal to grant leniency. — The sentencing court's imposition of the basic sentence
for a fourth-degree felony and failure to suspend the sentence on the basis that the
defendant refused to name his drug source did not constitute an increase,
enhancement, or aggravation of the sentence imposed. State v. Sosa, 1996-NMSC-
057, 122 N.M. 446, 926 P.2d 299.

Factors that Earned Meritorious Deduction Act allows judge to find in order to limit
credit under Section 33-2-34 L(4)(n) NMSA 1978 (now Section 33-2-34L(4)(o) NMSA
1978) 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.

                            III.    SPECIFIC SENTENCES.

Failure to instruct jury to find whether crimes resulted in death was harmless error
where overwhelming evidence was that defendant participated in armed robbery of
victim, victim was beaten in head with metal pipe and suffered fractured skull, died soon
thereafter of his injuries, and there was no evidence of another cause of death, nor did
defendant dispute that armed robbery resulted in victim's death. State v. McDonald,
2004-NMSC-033, 136 N.M. 417, 99 P.3d 667.

No evidence that leaving the scene of the accident resulted in the death of a
human being. — Where, following an automobile accident, defendant was charged by
grand jury indictment with one count of homicide by vehicle (reckless driving) and one
count of knowingly leaving the scene of an accident where the accident results in great
bodily harm or death, and where defendant pleaded no contest to the charge of
knowingly leaving the scene of an accident where the accident results in great bodily
harm or death only, and where the district court ruled that the six-year term of
imprisonment provided for by 31-18-15(A)(8) NMSA 1978 was applicable, the district
court erred in sentencing defendant to a six-year term of imprisonment for a third
degree felony resulting in the death of a human being rather than sentencing defendant
to a three-year term of imprisonment as a third degree felony pursuant to 31-18-
15(A)(11) NMSA 1978, because the plain language of 66-7-201(C) NMSA 1978 is
designed to encourage individuals involved in motor vehicle accidents where the
accident results in great bodily harm or death to remain at the scene of the accident
until they have complied with the requirements of 66-7-203 NMSA 1978, not to punish
the evil resulting from great bodily harm or death; it is the circumstances of the
commission of the crime at issue that controls, and in this case, defendant never
pleaded guilty to any conduct that caused the death of the victim. State v. Melo-
Fernandez, 2025-NMCA-021.

Enhanced basic sentence was the appropriate sentence because offense resulted
in the death of a human being. — Where a jury convicted defendant of two counts of
vehicular homicide while under the influence of intoxicating liquor or any drug, and
where, at sentencing, the district court sentenced defendant to twenty-three years of
incarceration for the first vehicular homicide conviction, consisting of a fifteen-year
enhanced basic sentence and an eight-year enhancement, and twenty years for the
second homicide by vehicle conviction, consisting of a fifteen-year enhanced basic
sentence and eight-year enhancement, with three years suspended, and ordered that
the sentence for the second homicide by vehicle conviction run consecutively with the
sentence for the first vehicular homicide conviction, and where defendant argued that
the district court erred in applying the enhanced basic sentence instead of the nine-year
sentence, claiming that the legislature intended to limit the enhanced basic sentence to
apply to violations of those criminal statutes that have identically-worded felony
classifications, the district court had jurisdiction to impose the enhanced basic sentence,
because the enhanced basic sentence was the appropriate sentence when any second
degree felony is committed that includes the additional factual consequence that the
offense resulted in the death of a human being. State v. Ensor, 2026-NMCA-007, cert.
denied.

Sentences served concurrently unless trial court or legislature requires
consecutive sentences. — The trial court has discretion to require sentences to be
served consecutively, but if this is not done, and there is no legislation covering the
situation, the sentences are to be served concurrently. State v. Mayberry, 1982-NMCA-
061, 97 N.M. 760, 643 P.2d 629.

Proper to enhance sentence under both habitual offender and firearm
enhancement provisions. — It is not improper to enhance a sentence under the
general habitual offender statute if it has already been enhanced under the firearm
enhancement statute. State v. Reaves, 1982-NMCA-169, 99 N.M. 73, 653 P.2d 904.

Multiple enhancements permitted. — In the absence of the type of "dual use" (i.e.,
when the same fact is used both as an element of the crime and a subsequent
enhancement or as the basis for two separate enhancements) discussed in State v.
Keith, 1985-NMCA-012, 102 N.M. 462, 697 P.2d 145, cert. denied, 102 N.M. 492, 697
P.2d 492 and its progeny, the legislature has authorized both enhancements under the
basic sentencing statute and on the finding of aggravating circumstances. 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.

Enhanced sentences cannot be served concurrently. — An additional one-year
sentence for the use of a firearm and an additional one-year sentence as an habitual
offender cannot be served concurrently. State v. Mayberry, 1982-NMCA-061, 97 N.M.
760, 643 P.2d 629.

Enhanced sentences invalidated. — Where defendant’s basic sentences imposed
under this section were increased under Section 31-18-15.1 NMSA 1978 based on the
district court's findings of aggravating circumstances, and not based on a jury’s findings
and under a burden of proof beyond a reasonable doubt, the enhancements are
invalidated. State v. Frawley, 2005-NMCA-017, 137 N.M. 18, 106 P.3d 580, cert.
denied, 2005-NMCERT-002, 137 N.M. 265, 110 P.3d 73, overruled by State v. Lopez,
2005-NMSC-036, 138 N.M. 521, 123 P.3d 754, overruled by State v. Frawley, 2007-
NMSC-057, 143 N.M. 7, 172 P.3d 144.

Proper aggravated battery sentence not made erroneous by superfluous
reference to another offense. — Having stated his reason for altering the basic
sentence for felony aggravated battery, the altered sentence is not made erroneous by
the court's superfluous reference to another offense. State v. Wilson, 1982-NMCA-019,
97 N.M. 534, 641 P.2d 1081, cert. denied, 98 N.M. 50, 644 P.2d 1039.

The district court erred by failing to comply with the criminal sentencing act for a
third-degree felony for a sexual offense against a child. — Where defendant was
convicted of attempt to commit second-degree criminal sexual contact of a minor
(CSCM), a third degree felony, and where the district court imposed a basic sentence of
three years, defendant's basic sentence was an illegal sentence, because the Criminal
Sentencing Act mandates that a basic sentence for a third-degree felony shall be three
years imprisonment, unless the third-degree felony is a sexual offense against a child,
in which case the basic sentence shall be six years imprisonment. Defendant's crime,
although incomplete, was a sexual offense against a child. State v. Notah, 2022-NMCA-
005, cert. denied.

Imprisonment for noncompliance with parole matters is not a term of imprisonment
which can be imposed by sentence, as such imprisonment results only after sentence
has been imposed. State v. Gonzales, 1981-NMCA-086, 96 N.M. 556, 632 P.2d 1194.
When multiple parole periods commence. — The New Mexico Criminal Sentencing
Act (Sections 31-18-12 to 31-18-21 NMSA 1978) requires that in the case of
consecutive sentencing, the parole period of each offense commence immediately after
the period of imprisonment for that offense, and such parole time will run concurrently
with the running of any subsequent basic sentence then being served. Brock v. Sullivan,
1987-NMSC-013, 105 N.M. 412, 733 P.2d 860.

The defendant, convicted of a fourth-degree felony and a misdemeanor, was sentenced
consecutively to 18 months imprisonment for the felony and 364 days for the
misdemeanor. The court erred in requiring him to serve his parole period after the
completion of the entire sentence, 18 months and 364 days, instead of allowing him to
begin his parole after the term for the felony had expired and concurrently with the term
for the misdemeanor. Gillespie v. State, 1988-NMSC-068, 107 N.M. 455, 760 P.2d 147.

Where defendant was convicted of five counts of forgery in one case and seven
felonies in a subsequent case, and was sentenced to consecutive terms of
imprisonment, the parole period for defendant’s first sentence, since it is deemed part of
the sentence, commenced immediately after the period of imprisonment for the first
offense and ran concurrently with the running of the subsequent basic sentence being
served which would also require a period of parole following the subsequent sentence.
State v. Ortiz, 2015-NMCA-020, cert. denied, 2015-NMCERT-001.

Lesser charge against codefendant provides no basis for relief. — The fact that
defendant was sentenced to the term authorized by law provides no basis for post-
conviction relief where defendant asserts that "codefendants" were sentenced for a
fourth-degree felony on the basis of "the same identical act," and that the state had
reduced the charge to a fourth-degree felony on one codefendant. State v. Follis, 1970-
NMCA-083, 81 N.M. 690, 472 P.2d 655.

Sentence upon two charges arising out of same transaction. — Under former law,
which required that the term of imprisonment "shall not exceed the maximum nor be
less than the minimum fixed by law," where appellant was sentenced for both rape and
assault with intent to commit rape, both charges arose out of the same transaction,
were committed at the same time as part of a continuous act, and were inspired by the
same criminal intent which was an essential element of each offense, and, accordingly,
were susceptible of only one punishment. State v. Blackwell, 1966-NMSC-088, 76 N.M.
445, 415 P.2d 563.

Consecutive and concurrent sentences. — Where 1969 sentences were expressly
made consecutive to 1967 sentences, and eight sentences in 1969 were also expressly
made consecutive, these nine consecutive sentences were validly imposed. Deats v.
State, 1972-NMCA-155, 84 N.M. 405, 503 P.2d 1183.

Period of parole is to be in addition to basic sentence and is considered a part of
the sentence of the convicted person. State v. Johnson, 1980-NMCA-083, 94 N.M. 636,
614 P.2d 1085, cert. denied, 94 N.M. 674, 615 P.2d 991.
There is no restriction placed upon period of parole except that it be for a
reasonable period of time consistent with the needs of the individual. State v. Johnson,
1980-NMCA-083, 94 N.M. 636, 614 P.2d 1085, cert. denied, 94 N.M. 674, 615 P.2d
991.

Homicide by vehicle. — Even though Section 66-8-101 NMSA 1978 does not include
the language "resulting in the death of a human being," the crime of homicide by vehicle
is subject to the six-year sentence authorized by Subsection A(4). State v. Guerro,
1999-NMCA-026, 126 N.M. 699, 974 P.2d 669, cert. denied, 126 N.M. 533, 972 P.2d
352.

Issuing a worthless check over $25.00. — The offense of issuing a worthless check
over $25.00 is a "felony" but could not constitute a "fourth degree felony" because the
minimum sentence imposed for issuing worthless checks is less than the stated
sentence for fourth degree felonies. State v. Muzio, 1987-NMCA-006, 105 N.M. 352,
732 P.2d 879, cert. denied, 105 N.M. 358, 732 P.2d 1381.

Voluntary manslaughter with firearm enhancement. — Upon conviction of voluntary
manslaughter, with firearm enhancement, imposition of a three-year sentence under 30-
2-3 NMSA 1978, plus an additional three-year sentence under this section, and an
additional one-year firearm enhancement, did not result in multiple punishments for the
same offense in violation of double jeopardy. State v. Alvarado, 1997-NMCA-027, 123
N.M. 187, 936 P.2d 869, cert. denied, 123 N.M. 168, 936 P.2d 337.

District judge may not alter judgment after issuance of commitment. — In the
absence of an adjudication by the supreme court to the contrary, it is the opinion that a
district judge is without authority to change, alter or amend a judgment after issuance of
commitment to the penitentiary. 1959 Op. Att'y Gen. No. 59-122.

Law reviews. — For comment, "Criminal Procedure - Preventive Detention in New
Mexico," see 4 N.M.L. Rev. 247 (1974).

For comment, "Definitive Sentencing in New Mexico: The 1977 Criminal Sentencing
Act," see 9 N.M.L. Rev. 131 (1978-79).

For article, "New Mexico Antitrust Law," see 9 N.M.L. Rev. 339 (1979).

For article, "Sufficiency of Provocation for Voluntary Manslaughter in New Mexico:
Problems in Theory and Practice," see 12 N.M.L. Rev. 747 (1982).

For comment, "The Constitution is Constitutional - A Reply to The Constitutionality of
Pretrial Detention Without Bail in New Mexico," see 13 N.M.L. Rev. 145 (1983).

For annual survey of New Mexico law relating to criminal law, see 13 N.M.L. Rev. 323
(1983).
For annual survey of New Mexico law relating to criminal procedure, see 13 N.M.L. Rev.
341 (1983).

For article, "Survey of New Mexico Law, 1982-83: Criminal Procedure," see 14 N.M.L.
Rev. 109 (1984).

For annual survey of criminal procedure in New Mexico, see 18 N.M.L. Rev. 345 (1988).

For comment, "An Equal Protection Challenge to First Degree Depraved Mind Murder
Under the New Mexico Constitution", see 19 N.M.L. Rev. 511 (1989).

For article, "Unintentional homicides caused by risk-creating conduct: Problems in
distinguishing between depraved mind murder, second degree murder, involuntary
manslaughter, and noncriminal homicide in New Mexico," 20 N.M.L. Rev. 55 (1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law §§ 825,
828, 944, 949.

Right to credit on state sentence for time served under sentence of court of separate
jurisdiction where state court fails to specify in that regard, 90 A.L.R.3d 408.

Sentencing: permissibility of sentence to a fine only, under statutory provision for
imprisonment or imprisonment and fine, 35 A.L.R.4th 192.

Validity, construction, and application of concurrent-sentence doctrine - state cases, 56
A.L.R.5th 385.