And yet, NM case law shows that the firearm use part of the statute goes back to 2016.
Read Section 31-18-16 - Use, brandishing or discharge of firearm; alteration of basic sentence; suspension and deferral limited, N.M. Stat. § 31-18-16, see flags on bad law, and search Casetext’s comprehensive legal database
casetext.com
They aren't charging him with brandishing, but with use (Section C of the above link).
IMO. Not the section on brandishing.
C. When a separate finding of fact by the court or jury shows that a firearm was discharged 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 five years, except that when the offender is a serious youthful offender or a youthful offender who received an adult sentence, the sentence imposed by this subsection may be increased by three years.
N.M. Stat. § 31-18-16
I think this resource is excellent, up to date, accurate, AND you can also look it up to see what each previous version said before the current one, and the one before that, etc. The one quoted above came into effect in May 2022, months after the event. I'm not sure if the links will work, but if not, go to nmonesource.com and go from there - pick a year, pick a section (31), and pick a paragraph (18), and pick a topic, etc. For those not interested in legaleze, please just scroll on by, I tried to paste relevant parts but it is long.
ETA: formatting: strike-out by me, on the parts that aren't applicable for reasons that are bolded.
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2021
31-18-15. Sentencing authority;
noncapital felonies; basic sentences and fines; parole authority; meritorious deductions.
A. If a person is convicted of a
noncapital felony, the basic sentence of imprisonment is as follows:
….
(13) for a 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 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. 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:
…
(11) for a third or fourth degree felony, five thousand dollars ($5,000); or ...
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.
Chapter 31 - Criminal Procedure (2021) - NMOneSource.com
31-18-16. Brandishing 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 brandished 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 three years, except 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 brandished, the basic sentence of imprisonment prescribed in Section 31-18-15 NMSA 1978 shall be increased by five years, except 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 case is tried before a jury and if a prima facie case has been established showing that a firearm was brandished 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 brandished in the commission of the offense, the court shall decide the issue and shall make a separate finding of fact thereon.
D.
As used in this section, "brandished" means displaying or making a firearm known to another person while the firearm is present on the person of the offending party
with intent to intimidate or injure a person.
History: 1953 Comp., § 40A-29-29, enacted by Laws 1977, ch. 216, § 5; 1979, ch. 152, § 3;
1993, ch. 77, § 7;
2020, ch. 54, § 3.
ANNOTATIONS
The 2020 amendment, effective July 1, 2020, increased the sentence enhancements for
brandishing of a firearm in the commission of a noncapital felony, and
defined "brandished" as used in this section; in the section heading, and throughout the section,
substituted "brandished" for "used"; in Subsection A, after "shall be increased by", deleted "one year and the sentence imposed by this subsection shall be the first served" and
added "three years, except"; in Subsection B, after "shall be increased by", deleted "three" and added "five", and after "years", deleted "and the sentence imposed by this subsection shall be the first three years served, and shall not be suspended or deferred; provided" and added "except"; and
added Subsection D.
Chapter 31 - Criminal Procedure (2021) - NMOneSource.com
----------------------------------------------------------------
2022
31-18-15. Sentencing authority; noncapital felonies; basic 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 |
…
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 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. 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:
…
(11) for a third or fourth degree felony, five thousand dollars ($5,000); or ...
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.
Chapter 31 - Criminal Procedure (2022) - NMOneSource.com
-----------------------------------------
31-18-16. Use, brandishing or discharge 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 relation to a drug transaction or during the commission of aggravated burglary pursuant to Section 30-16-4 NMSA 1978 or a serious violent offense, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 shall be increased by one year, except that when the offender is a serious youthful offender or a youthful offender who received an adult sentence, the sentence imposed by this subsection may be increased by one year.
B. When a separate finding of fact by the court or jury shows that a firearm was brandished 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 three years, except that when the offender is a serious youthful offender or a youthful offender that received an adult sentence, the sentence imposed by this subsection may be increased by one year.
C. When a separate finding of fact by the court or jury shows that a
firearm was discharged 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 five years, except that when the offender is a serious youthful offender or a youthful offender who received an adult sentence, the sentence imposed by this subsection may be increased by three years.
D. For a second or subsequent offense, when a separate finding of fact by the court or jury shows that a firearm was used, brandished, or discharged in relation to a drug transaction or during the commission of aggravated burglary pursuant to Section 30-16-4 NMSA 1978 or a serious violent offense, the sentence shall be increased by five years, except that when the offender is a serious youthful offender or a youthful offender, the sentence imposed by this section may be increased by three years.
E. If the case is tried before a jury and if a prima facie case has been established showing that a firearm was used, brandished or discharged in relation to a drug transaction or during the commission of aggravated burglary pursuant to Section 30-16-4 NMSA 1978 or a serious violent offense, the court shall submit the issue to the jury by special interrogatory. If the case is tried by the court, the court shall decide the issue and shall make a separate finding of fact thereon.
F. When a separate finding of fact by the court or jury shows that a firearm was used, brandished or discharged in relation to a drug transaction or during the commission of aggravated burglary pursuant to Section 30-16-4 NMSA 1978 or a serious violent offense, the firearm is subject to seizure and forfeiture as an instrumentality pursuant to the provisions of the Forfeiture Act [Chapter 31, Article 27 NMSA 1978].
G. As used in this section:
(1) "
brandished" means displaying or making a firearm known to another person while the firearm is present on the person of the offending party with
intent to intimidate or injure a person;
(2) "in relation to a drug transaction" means participating or attempting to participate in the trafficking of a controlled substance pursuant to Section 30-31-20 NMSA 1978, distribution of a controlled substance to a minor pursuant to Section 30-31-21 NMSA 1978 or distribution of a controlled or counterfeit substance pursuant to Section 30-31-22 NMSA 1978 as a seller, purported seller or as an accomplice; and
(3) "serious violent offense" means an offense enumerated in Subparagraphs (a) through (n) of Paragraph (4) of Subsection L of Section 33-2-34 NMSA 1978.
History: 1953 Comp., § 40A-29-29, enacted by Laws 1977, ch. 216, § 5; 1979, ch. 152, § 3;
1993, ch. 77, § 7;
2020, ch. 54, § 3;
2022, ch. 56, § 30.
ANNOTATIONS
The 2022 amendment, effective May 18, 2022, provided for a sentencing enhancement when a firearm is used during the commission of a drug transaction or serious violent offense, and provided that if a firearm is used during the commission of a drug transaction or serious violent offense, the firearm is subject to seizure; added a new Subsection A and redesignated former Subsection A as Subsection B; deleted former Subsection B,
added new Subsections C and D and redesignated former Subsection C as Subsection E; in Subsection E, after "showing that a firearm was", added "used", after "brandished", deleted "in the commission of the offense" and added "or discharged in relation to a drug transaction or during the commission of aggravated burglary pursuant to Section
30-16-4 NMSA 1978 or a serious violent offense", and after "tried by the court", deleted "and if a prima facie case has been established showing that a firearm was brandished in the commission of the offense"; added a new Subsection F and
redesignated former Subsection D as Subsection G; and in Subsection G, added Paragraphs G(2) and G(3).
The 2020 amendment, effective July 1, 2020, increased the sentence enhancements for
brandishing of a firearm in the commission of a noncapital felony
, and defined "brandished" as used in this section; in the section heading, and throughout the section,
substituted "brandished" for "used"; in Subsection A, after "shall be increased by", deleted "one year and the sentence imposed by this subsection shall be the first served" and
added "three years, except"; in Subsection B, after "shall be increased by", deleted "three" and added "five", and after "years", deleted "and the sentence imposed by this subsection shall be the first three years served, and shall not be suspended or deferred; provided" and added "except"; and
added Subsection D.
The 1993 amendment, effective July 1, 1993, added the provisos at the end of Subsections A and B.
Chapter 31 - Criminal Procedure (2022) - NMOneSource.com
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