January 7, 2019- State of New Mexico v. Michael Rodriguez, No. A-1-CA-37375

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 	Plaintiff-Appellant,
4 	v. 	No.A-1-CA-37375
5 MICHAEL RODRIGUEZ,
6 	Defendant-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Douglas R. Driggers, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM 	·
11 	for Appellant
12 Bennett J. Baur, Chief Public Defender
13 	Will O'Connell, Assistant Appellate Defender
14 	Santa Fe, NM
15 	for Appellee
16 	MEMORANDUM OPINION
17 V ANZI, Chief Judge.
18 	{1} 	The State appeals from a district court order revoking Defendant's probation
19 and re-sentencing him. We issued a calendar notice proposing to reverse. Defendant
20 has responded with a memorandum in opposition. We reverse and remand for
21 	resentencing.
Court of Appeals of New Mexico
Filed 1/7/2019 8:57 AM
Mark Reynolds

1 {2} 	In this case, 	Defendant plead guilty in 2015 to trafficking and distribution. [RP
2 40] The plea contains an admission of identity to two prior felonies. [RP 40] The
3 State only sought to enhance his sentence with one of the two prior felonies, but the
4 plea informed Defendant that he could be subject to the use of both priors upon
5 revocation of his probation. [RP 41, 42] Pursuant to the plea, only a single prior was
6 used in the judgment and sentence, resulting in each felony being enhanced by one
7 year. [RP 51] Defendant's probation was thereafter revoked, and the State sought a
8 four-year enhancement for each felony, based on the use of both priors, with credit
9 for any time served under the additional enhancement. See NMSA 1978, § 31-18-
10 	17(B) (2003) (mandating a four-year enhancement where the defendant has two
11 	priors). The district court ruled that the State had "used up" the first felony in the first
12 sentence, and the use of a second prior at re-sentencing would only tack on an
13 	additional year a piece to the enhancements.
14 	{3} 	In State v. Freed, 1996-NMCA-044, 121 N.M. 569,915 P.2d 325, this Court
15 	was presented with the identical issue that we have here. We concluded that the
16 	State's use of only a single prior felony in the original sentence did not preclude it
17 from using that same prior felony for purposes of seeking a greater enhancement in
18 the second sentence. Id. 1 7. We noted that the second judgment supersedes the
19 original judgment, and therefore all prior felonies charged by the state control the
2

1 period of enhancement. Id. There, as here, the state could use both the single felony
2 used in the original sentence, and the second felony used after revocation, resulting
3 in a four-year enhancement, subject of course to any credit that may apply. Id. 18.
4 	{4} 	In his memorandum in opposition, Defendant argues that we should depart
5 from Freed and the New Mexico Supreme Court precedent cited therein, because
6 double jeopardy law has evolved since Freed was decided. However, as observed in
7 Freed "the question of whether multiple use of one prior act is permissible [for
8 double jeopardy purposes] in a given situation is generally a question of legislative
9 intent." Id 18.There is no statutory change that indicates that the legislative intent
10 has changed on this issue. We therefore decline to revisit Freed.
11 	{5} 	For the reasons set forth above, we reverse and remand.
12 	{6} 	IT IS SO ORDERED.
13
14
15 	WE CONCUR:
e
Judge
18 	/).~
19 J. MILES HANISEE, Judge
3