January 11, 2012 – State of New Mexico v. Hector Torres, No. 28,234

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: 	January 11, 2012
NO. 28,234
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
HECTOR TORRES,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Michael E. Vigil, District Judge
Gary K. King, Attorney General
Santa Fe, NM
Jacqueline R. Medina, Assistant Attorney General
Albuquerque, NM
for Appellee
Jacqueline L. Cooper, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
WECHSLER, Judge.
{1} 	Defendant Hector Torres was sentenced in 1988 pursuant to a plea agreement
for escape from the penitentiary and for his status as a habitual offender. The district
court made several legal errors in ordering Defendant’s sentence that resulted in an
unlawfully light term of imprisonment. The State did not discover the errors until
2006, at a time when Defendant was nearing his release. The State filed a Rule 5-
801(A) NMRA motion, requesting an increase of Defendant’s sentence by an
additional eight years. The district court granted the State’s request, and Defendant
appealed on constitutional grounds, arguing that altering his sentence nearly two
decades after imposition violated double jeopardy and due process. 	Without
addressing the constitutional issues, we reverse on jurisdictional grounds. 	Having
reviewed the supplemental briefs requested on jurisdiction, and in light of the history
and language of Rule 5-801(A), we hold that the district court did not have
jurisdiction to correct Defendant’s illegal sentence. 	We therefore remand to the
district court to reinstate Defendant’s sentence as originally imposed in 1988.
BACKGROUND
{2} 	On April 25, 1988, Defendant entered a guilty plea to the charge of escape from
penitentiary, as prohibited by NMSA 1978, Section 30-22-9 (1963), for his

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participation in a group-inmate escape from the New Mexico Department of
Corrections in Santa Fe. At the time of Defendant’s escape, he was serving multiple
sentences related to a thirteen-year string of criminal activity, which included several
burglaries and an aggravated assault on a police officer. Due to his criminal record,
Defendant admitted to meeting the statutory requirements for a habitual offender
enhancement by having three or more prior felony convictions, pursuant to NMSA
1978, § 31-18-17(C) (1983) (amended 2003). 	At the guilty plea proceeding, the
district court noted that “[D]efendant understands the range of possible sentence for
the offenses charged, from a suspended sentence to a maximum of nine (9) years
imprisonment plus eight (8) years enhancement for [the h]abitual [o]ffender
[enhancement plus] a parole term of two (2) years,” should the court impose
confinement.
{3} 	At the sentencing hearing on April 25, 1988, the district court ordered
Defendant to serve nine years for the escape charge, two of which were to be
suspended, plus an additional eight years for the habitual offender enhancement.
Acknowledging defense counsel’s pleas for leniency, Defendant’s ancillary role in the
escape (he was apparently used by the other escapees as a decoy), and the other
escapees’ willingness to enter pleas in hopes that Defendant would receive a lighter
sentence, the judge ordered the

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[s]entences 	to 	run 	CONCURRENTLY 	with 	each 	other, 	but
CONSECUTIVELY to the sentences [D]efendant is now serving, (CR
36947 and 83-41 CR) for a total term of incarceration of eight (8) years,
to be served concurrently to the last eight (8) years of VA 85-101, with
a mandatory two (2) year period of parole to be served upon completion
of the basic sentence.
In effect, Defendant received only two additional years of parole and no additional
prison time for escaping from prison and being found a habitual offender. Despite the
apparent leniency of the sentence, the State did not appeal the 1988 sentence, and
Defendant began serving his remaining sentences concurrently with his newly-
imposed sentence.
{4} 	Although calculations differ between the parties, there is no debate that
Defendant would have been eligible for parole with good time deductions, sometime
between the fall of 2006 and the fall of 2007. 	Near the 	completion of the 1988
sentence, after Defendant had served without further incident for eighteen years, the
State filed a motion to correct Defendant’s illegal sentence on September 22, 2006.
{5} 	The State’s sudden interest, after almost two decades of inactivity, was
reportedly pursuant to a system-wide audit by the Department of Corrections that was
prompted by media scrutiny of several high-profile sentencing errors. 	After
discovering Defendant’s sentencing error, the district court held an expedited hearing
on the motion and ultimately found in favor of the State. The district court ordered
Defendant’s sentence modified as follows: nine years on the escape charge, with all

4
nine years suspended, eight years on the habitual offender enhancement to be run
consecutive to the aggregate of Defendant’s prior sentences, and a mandatory parole
term of two years. In short, the district court increased Defendant’s prison sentence
by eight years—the least amount required to correct the illegality.
{6} 	Defense counsel filed an untimely notice of appeal, requesting a presumption
of ineffective assistance of counsel for late filing and a review of the delayed
sentencing increase. Because the underlying conviction was pursuant to a guilty plea,
this Court could not presume ineffective assistance of counsel and instead remanded
for a limited evidentiary hearing on the issue of whether Defendant’s trial attorney’s
failure to file a timely notice of appeal was the result of ineffective assistance of
counsel. Anticipating the case would return, this Court also instructed the parties to
submit supplemental briefs on “whether the State was barred by the time requirements
in Rule 5-801 . . . from filing the motion to correct Defendant’s illegal sentence. On
remand, the district court promptly found ineffective assistance of counsel for the late
filing of the notice of appeal, and the parties returned to this Court with supplemental
briefing on the jurisdictional issue. We now review the parties’ arguments and render
our decision.
ILLEGALITY OF 1988 SENTENCE

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{7} 	As a preliminary matter, we explain how Defendant’s 1988 sentence was
illegal. The district court was required to sentence Defendant according to NMSA
1978, Section 31-18-21(A) (1977), for committing a felony while incarcerated and
enhance that sentence according to Section 31-18-17(C) for his status as a habitual
offender. The district court erred in its application of both sections.
{8} 	Section 31-18-21(A) dictates that “the sentence imposed shall be consecutive
to the sentence being served[.]” 	The phrase “sentence being served” has been
interpreted by State v. Davis to “mean[] sentences in the aggregate, and, pursuant to
statute, all sentences imposed upon [a d]efendant [while incarcerated] must run
consecutive to the total of his combined sentences.” 	2003-NMSC-022, ¶ 15, 134
N.M. 172, 74 P.3d 1064. The district court violated the Davis interpretation of the
statute by ordering Defendant to serve his escape sentence concurrently to his last
prior conviction.
{9} 	Defendant 	argues 	that 	the 	2003 	interpretation 	in 	Davis 	cannot 	apply
retroactively to affect Defendant’s 1988 sentence, which he claims was a rational
interpretation of the statute before Davis. Defendant’s argument is unavailing. “An
appellate 	court’s 	consideration 	of 	whether 	a 	rule 	should 	be 	retroactively 	or
prospectively applied is invoked only when the rule at issue is in fact a new rule.”
State v. Mascareñas, 2000-NMSC-017, ¶ 24, 129 N.M. 230, 4 P.3d 1221 (internal

6
quotation marks omitted); see Santillanes v. State, 115 N.M. 215, 223, 849 P.2d 358,
366 (1993) (“The issue of retroactive effect arises only when a court’s decision
overturns prior case law or makes new law[.]”). Section 31-18-21(A) was not a new
rule and had never been construed contrary to Davis. It had been a law for over a
decade prior to its application to Defendant, and to the extent Davis definitively
interpreted its breadth in 2003, our Supreme Court asserted that “no doubts about
construction 	and 	no 	insurmountable 	ambiguity 	exist 	with 	respect 	to 	Section
31-18-21(A).” 	Davis, 2003-NMSC-022, ¶ 14. 	Furthermore, our Supreme Court
perceived no problem in applying the interpretation to the defendant in Davis, who as
a co-escapee, was sentenced alongside Defendant in 1988.
{10} 	The district court also misapplied Section 31-18-17(C), which directs that a
habitual offender with three or more felony convictions shall have “his basic sentence
. . . increased by eight years” and the increase “shall not be suspended or deferred.”
The district court specifically ordered the underlying basic sentence and the
enhancement “to run CONCURRENTLY with each other,” in direct conflict with the
statutory mandate. See State v. Mayberry, 97 N.M. 760, 763, 643 P.2d 629, 632 (Ct.
App. 1982) (recognizing that habitual offender enhancements cannot be served
concurrently to the underlying basic sentence). 	Having unequivocally determined
Defendant’s 1988 sentence was illegal, we now determine whether the district court

7
had jurisdiction in 2006 to correct the illegality.
JURISDICTIONAL ANALYSIS OF RULE 5-801(A)
{11} 	We begin with an analysis of a district court’s jurisdiction under Rule 5-801(A),
“Correction of sentence.” We review de novo the legal “question of whether a trial
court 	has 	jurisdiction 	in 	a 	particular 	case.” 	Smith 	v. 	City 	of 	Santa 	Fe,
2007-NMSC-055, ¶ 10, 142 N.M. 786, 171 P.3d 300. 	We also note that defense
counsel’s concessions and failure to preserve the jurisdictional issue do not affect our
review. See Zarges v. Zarges, 79 N.M. 494, 497, 445 P.2d 97, 100 (1968) (“[Parties
are] entitled to raise [jurisdictional] question[s] notwithstanding . . . prior inconsistent
attitude, for jurisdiction of the subject-matter must arise by law and not by mere
consent.” (internal quotation marks and citation omitted)). Moreover, this Court itself
may raise jurisdictional issues on appeal. Rule 12-216(B) NMRA (“This rule shall not
preclude the appellate court from considering jurisdictional questions[.]”).
{12} 	“We apply the same rules of construction to procedural rules adopted by the
Supreme Court as we do to statutes.” 	State v. Miller, 2008-NMCA-048, ¶ 11, 143
N.M. 777, 182 P.3d 158. According to those rules of construction, our overarching
goal is to determine the underlying intent of the drafters, Roark v. Farmers Group,
Inc., 2007-NMCA-074, ¶ 50, 142 N.M. 59, 162 P.3d 896, and we begin that task by
parsing the plain language of the rule. See State v. Steven B., 2004-NMCA-086, ¶ 15,

8
136 N.M. 111, 94 P.3d 854 (“Our starting point is the plain language of the statute.”).
Plain Language of Rule 5-801(A)
{13} 	Although neither party raises the issue, there could be some confusion as to
which version of Rule 5-801(A) applies in this case. 	According to the compiler’s
annotations, the 1989 amendment became “effective for cases filed in the district
courts on or after August 1, 1989.” 	Rule 5-801, compiler’s annotations (1989)
(emphasis added). Defendant’s escape case was filed in the district court in 1988. It
would appear then that Defendant’s case should be governed by the version of Rule
5-801(A) that pre-dated the 1989 amendment. 	But the 1986 Supreme Court order
adopting the previous amendment to the rule suggests otherwise. When the Supreme
Court adopted the 1986 amendment, Chief Justice William Riordan annotated the
order to clarify that the amendments “shall apply to all post conviction motions filed
after” March 1, 1986. In re Amendment of Rules 57 and 57.1, Rules of Dist. Ct. Crim.
P. (Feb. 10, 1986) (emphasis added). 	The Rules Committee did not distinguish
between the manner of application of the 1986 amendment and that of the 1989
amendment. Rule 5-801 (1989) (“As amended, effective March 1, 1986, and August
1, 1989.”). Accordingly, we apply the current Rule 5-801(A), as amended through
1989, to post-conviction motions filed in the district courts on or after August 1, 1989.
Because the State filed a post-conviction motion in 2006 pursuant to Rule 5-801(A),

9
we apply the current version of Rule 5-801(A) to Defendant, despite the fact that his
underlying criminal case was originally filed prior to August 1, 1989.
{14} 	The current version of Rule 5-801(A) reads:
A. 	Correction of sentence. The court may correct an illegal
sentence at any time pursuant to Rule 5-802 NMRA and may correct a
sentence imposed in an illegal manner within the time provided by this
rule for the reduction of sentence.
{15} 	Rule 5-802(A) “governs the procedure for filing a writ of habeas corpus by
persons in custody or under restraint.” 	While it is clear from the face of Rule 5-
801(A) that the district court has indefinite jurisdiction to correct illegal sentences
pursuant to defendant-based writ of habeas corpus under Rule 5-802, it is not clear
whether the court’s jurisdiction is strictly limited to a writ of habeas corpus and is
meant to exclude state-based motions altogether. 	Defendant argues that Rule 5-
801(A) should be read as a strict limitation under the doctrine of expressio unius est
exclusio alterius, and thus the State’s 2006 motion under the Rule should be barred.
State ex rel. King v. Lyons, 2011-NMSC-004, ¶ 36, 149 N.M. 330, 248 P.3d 878 (“We
have repeatedly recognized that [w]here authority is given to do a particular thing and
a mode of doing it is prescribed, it is limited to be done in that mode; all other modes
are excluded. This is a part of the so-called doctrine of expressio unius est exclusio
alterius.” (alteration in original) (internal quotation marks and citation omitted)). The

10
State, on the other hand, argues that “the trial courts’ [sic] jurisdiction to correct
[D]efendant’s sentence [does] not stem from . . . Rule 5-801, but rather from the
sentencing authority vested to the trial court by . . . statute,” and thus, “Rule 5-801
should not affect the disposition of this case.” See State v. Abril, 2003-NMCA-111,
¶ 20, 134 N.M. 326, 76 P.3d 644 (“Where a sentence lacks a statutorily-mandated
provision, the trial court retains jurisdiction to correct the sentence by adding the
omitted term.”).
{16} 	To the extent the language is ambiguous, we consider principles of statutory
construction to determine the rule’s meaning. 	Dewitt v. Rent-A-Center, Inc.,
2009-NMSC-032, ¶ 29, 146 N.M. 453, 212 P.3d 341. We consider the history and
background of the subject statute, which in New Mexico “has involved analysis of
previous enacted statutes relating to the same subject matter or amendments to the
disputed statute[.]” 	Rhinehart v. Nowlin, 111 N.M. 319, 324, 805 P.2d 88, 93 (Ct.
App. 1990); see In re Gabriel M., 2002-NMCA-047, ¶ 15, 132 N.M. 124, 45 P.3d 64
(“We compare the earlier versions of . . . statute[s] with the current version to help
determine legislative intent.”).
History of Rule 5-801(A)
{17} 	Interpreting Rule 5-801(A) in the context of its history and background, it is
apparent that the Rules Committee intended to strictly limit the district court’s

11
jurisdiction to correct illegal sentences to only habeas corpus-based motions under
Rule 5-802. Rule 5-801(A) was adopted based on Rule 35 of the Federal Rules of
Criminal Procedure, and it has closely tracked the history and background of the
federal rule, which has clearly sought to curtail federal district court jurisdiction over
correction of illegal sentences. Additionally, the historical amendments to Rule 5-
801(A) evidence a clear effort to limit district court jurisdiction in this arena, favoring
appellate and habeas corpus review of illegal sentences over unlimited district court
jurisdiction.
{18} 	Rule 5-801(A) was originally numbered as Rule 57.1 prior to the 1986
recompilation and was adopted in 1980 to be “substantially the same as Rule 35 of the
Federal Rules of Criminal Procedure.” Rule 5-801 committee commentary (1980).
Because our courts have routinely relied on federal case law and related legislative
history when interpreting similar New Mexico rules, we provide a summary of the
history of federal Rule 35. State v. Martinez, 2006-NMCA-148, ¶ 12, 140 N.M. 792,
149 P.3d 108 (stating that “federal law interpreting the rule is instructive,” when the
federal rule is similar to its New Mexico counterpart), aff’d, 2008-NMSC-060, 145
N.M. 220, 195 P.3d 1232. Rule 35 of the Federal Rules of Criminal Procedure was
adopted in 1944 and was itself a “codification of existing law.” 	Duggins v. United
States, 240 F.2d 479, 483 (6th Cir. 1957). Prior to adoption, “the general principle

12
[was] that a court [could not] set aside or alter its final judgment after the expiration
of the term at which it was entered, unless the proceeding for that purpose was begun
during that term.” Gilmore v. United States, 131 F.2d 873, 874 (8th Cir. 1942). But
there were always judicially-created exceptions to this general principle, one of which
was that district courts had indefinite jurisdiction to correct “clerical mistakes and a
sentence which the judgment did not support.” United States v. Bradford, 194 F.2d
197, 200 (2d Cir. 1952); see United States v. Rico, 902 F.2d 1065, 1067 (2d Cir. 1990)
(“[U]nder common law a district court was free at any time to correct sentences when
the judgment was void, because these sentences were invalid and not final
dispositions.” (internal quotation marks and citation omitted)), superceded by rule as
stated in United States v. Werber, 51 F.3d 342 (2d Cir. 1995).
{19} 	Despite the principle’s deep common law roots, it was nonetheless codified
because a related principle had been called into question. Duggins, 240 F.2d at 483
(“It was a codification of existing law and was intended to remove any doubt, created
by the ruling in United States v. Mayer, 235 U.S. 55, 67 [(1914)], about the
jurisdiction of the [d]istrict [c]ourt to correct an illegal sentence after the expiration
of the term at which it was entered.”). Under common law, district courts had limited
jurisdiction to modify legal sentences, allowing only those made during the term of
court in which the sentence was entered. But “the significance of the expiration of a

13
term of court [had] largely become an anachronism” by 1944, and it was therefore
necessary to “introduce[] a flexible time limitation on the power of the court [to]
reduce a sentence.” Fed. R. Crim. P. 35 advisory committee’s note. Rather than adopt
a piecemeal rule that would only address modification of sentences, Congress enacted
a comprehensive rule, encompassing the entire common law on the subject and
defining federal district court jurisdiction to both modify and correct illegal sentences.
{20} 	Following the federal lead, New Mexico adopted Rule 57.1 in 1980 to be
virtually identical to federal Rule 35, thereby codifying existing New Mexico common
law. 	In New Mexico, as in the federal system, the judiciary had interpreted its
sentencing authority, pursuant to the Legislature’s many sentencing statutes, as
including an inherent jurisdiction to correct illegal sentences. See State v. Peters, 69
N.M. 302, 304, 366 P.2d 148, 149 (1961) (“Sentences must be imposed as prescribed
by statute, [and an illegal sentence] being unauthorized by law, [is] null and void[.]”
(citation omitted)); see also Jordan v. Swope, 36 N.M. 84, 84, 8 P.2d 788, 788 (1932)
(“[J]urisdiction to render legal judgment . . . is not terminated by rendition of void
judgment.”). The purpose of codifying a long-standing common law principle was to
clarify any confusion created by the abolishment of the concept of terms of court, just
as in the federal context. Rule 5-801 committee commentary (1980) (“The Rules of
Criminal Procedure for the [d]istrict [c]ourts have abolished the concept of terms of

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court and therefore it is desirable to have a specific rule setting forth the limits of
power of the district court.”).
{21} 	Four years after New Mexico decided to adopt federal Rule 35, the United
States Congress repealed the indefinite jurisdiction principle embodied in Rule 35(a)
altogether. 	As part of a sweeping reform of the criminal justice system, Congress
enacted the Sentencing Reform Act of 1984, which sought in large part to make
prisoner release dates more certain and sentences imposed in the public forum more
final. S. Rep. No. 98-225, at 56 (1984), as reprinted in 1984 U.S.C.C.A.N. 3239; see
also United States v. Cook, 890 F.2d 672, 674-75 (4th Cir. 1989) (stating that the
underlying purpose of the Sentencing Reform Act of 1984 “was to impose on the new
sentencing system a requirement that the sentence imposed in the public forum during
the sentencing hearing would remain constant, immune from later modification”).
Citing numerous studies and hearings—including one report that correlated prisoner
uncertainty in release dates to prison riots—the congressional report concluded that
making release dates more certain would increase prisoner morale, foster public
respect for the law, and “enhance prison rehabilitation efforts.” S. Rep. No. 98-225,
at 56 n.83, 57 (1984), as reprinted in 1984 U.S.C.C.A.N. 3239 n.83, 3240.
{22} 	In order to accomplish those goals, Congress repealed long-standing Rule 35(a),
thereby stripping the federal district courts of their indefinite jurisdiction to correct

15
illegal sentences. 	United States v. Jordan, 915 F.2d 622, 627-28 (11th Cir. 1990)
(stating that Congress “explicitly foreclosed [the Rule 35(a)] route for obtaining
judicial review of an allegedly illegal sentence” at any time). “No changes, however,
were made to [the federal habeas corpus statute] by the 1984 Act,” which left open a
writ of habeas corpus as an additional review mechanism for defendants. 	United
States v. Lussier, 104 F.3d 32, 37 (2d Cir. 1997).
{23} 	Sixteen months after Congress repealed Rule 35(a) and curtailed federal district
court jurisdiction over illegal sentences, New Mexico followed suit. On February 10,
1986, despite Rule 57.1(a)’s reliance on long-standing principles of common law, the
New Mexico Supreme Court, by its order, adopted the recommendation of the Rules
Committee to repeal 57.1(a), which had previously allowed for indefinite jurisdiction
over illegal sentences. 	In the very same order, the New Mexico Supreme Court
transformed former Rule 57 (Post-conviction motions) to become Rule 57 (Habeas
corpus). As part of its comprehensive overhaul of Rule 57 (later re-compiled as Rule
5-802), the Supreme Court codified the procedure for filing writs of habeas corpus and
explicitly opened that avenue for review of “illegal” sentences under the scope of the
rule. Rule 5-802(A) (1986). With respect to appellate review of illegal sentences, it
was unnecessary to enact another rule because New Mexico appellate courts had
jurisdiction to review sentences under Article VI, Section 2 of the New Mexico

16
Constitution and NMSA 1978, Section 34-5-8(A)(3) (1983), and had previously
construed Rule 12-216 as allowing parties to challenge the legality of a sentence for
the first time on appeal. State v. Crespin, 96 N.M. 640, 641, 633 P.2d 1238, 1239 (Ct.
App. 1981); see State v. Bachicha, 111 N.M. 601, 608, 808 P.2d 51, 55 (Ct. App.
1991) (recognizing the right to challenge illegal sentences for the first time on appeal
extends equally to the state).
{24} 	Since the amendments of 1984, federal case law and legislation have made clear
that it was Congress’s specific intent to remove any historical common law
jurisdiction the federal district courts once enjoyed with respect to correction of illegal
sentences. United States v. Washington, 549 F.3d 905, 917 (3d Cir. 2008) (“[T]o the
extent there might have at one point been inherent power in the court, such power was
abrogated by Congress pursuant to . . . Federal Rule of Criminal Procedure 35(a).”).
In fact, in response to several circuit court opinions purporting to revive the federal
district court’s inherent jurisdiction to correct illegal sentences prior to appeal,
Congress further tightened the rule to allow correction of “arithmetical, technical, or
other clear error” only within seven days of the imposition of a sentence. 	United
States v. Diaz-Clark, 292 F.3d 1310, 1316-18 (11th Cir. 2002); Fed. R. Crim. P. 35
advisory committee’s note (stating that the amendment “in effect codifies the result
in those two cases but provides a more stringent time requirement”).

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{25} 	Similarly, New Mexico has also sought to clarify the scope of Rule 5-801 since
its 1986 repeal of Rule 57.1(a). In 1989, the New Mexico Supreme Court enacted a
final amendment to Rule 5-801(A) that re-inserted original Rule 57.1(a) language—
“[t]he court may correct an illegal sentence at any time”—with an important
limitation—“pursuant to Rule 5-802[.]”
{26} 	In Hayes v. State, 106 N.M. 806, 808, 751 P.2d 186, 188 (1988), our Supreme
Court held that the requirement of an earlier version of what is now Rule 5-801(B)
that a motion to reduce a sentence be filed within thirty days of various acts is a
jurisdictional requirement. Federal courts have similarly interpreted the current Rule
35 as a strict jurisdictional limitation. See United States v. Penna, 319 F.3d 509, 511-
12 (9th Cir. 2003) (seven-day limitation in Rule 35 for correcting sentence is strict
jurisdictional requirement); United States v. Morrison, 204 F.3d 1091, 1093 (11th Cir.
2000) (stating that “limitation contained in Rule 35(c) is a jurisdictional restriction”).
Although current federal Rule 35(a) now differs from Rule 5-801(A) in language, they
both serve as strict limitations on the jurisdiction of district courts to correct illegal
sentences—one procedurally and the other temporally. 	Compare Rule 5-801(A)
(“The court may correct an illegal sentence at any time pursuant to Rule 5-802[.]”),
with Fed. R. Crim. P. 35(a) (“Within 14 days after sentencing, the court may correct
a sentence that resulted from arithmetical, technical, or other clear error.”).

18
{27} 	As is apparent from the historical analysis, New Mexico has closely tracked
federal Rule 35(a) from adoption, through repeal, to its most current form.
Additionally, New Mexico continually narrowed the scope of Rule 5-801(A) over
time by first repealing and then clarifying its intended narrow reach. Given the history
of the New Mexico rule, in conjunction with its federal counterpart, the current
version of Rule 5-801(A) reflects a clear intent to strictly limit the district court’s
jurisdiction to habeas corpus proceedings to correct an illegal sentence.
INHERENT DISTRICT COURT JURISDICTION
{28} 	We take time to address the State’s argument that the district court’s authority
to correct illegal sentences stems not from Rule 5-801(A), but “from the sentencing
authority vested to the trial court by statute,” as recognized by the common law. See
Crespin, 96 N.M. at 643, 633 P.2d at 1241 (“The fixing of penalties is a legislative
function; the trial court’s authority is to impose a penalty which has been authorized
by the Legislature; a penalty which has not been authorized is void.”). The State is
correct that historically our courts created, through common law, an indefinite
jurisdiction in the district courts to correct illegal sentences, subject only to a
defendant’s constitutional protections. See, e.g., Peters, 69 N.M. at 304, 366 P.2d at
150. 	However, our Rules Committee codified that judicially-created principle in
whole—“[t]he court may correct an illegal sentence at any time”—and then chose to

19
repeal it shortly after Congress struck the very same language from the federal rule
with the express intent of circumscribing federal district court jurisdiction in order to
make sentences more final. Rule 5-801(A). Furthermore, nothing in the New Mexico
Supreme Court’s decision to repeal Rule 5-801(A) suggests that the Supreme Court
intended an opposite result by following the congressional decision to repeal the same
language in federal Rule 35(a).
{29} 	We remain aware of our long-standing rule that “only if a statute so provides
with express language or necessary implication will New Mexico courts be deprived
of their inherent equitable powers.” Sims v. Sims, 1996-NMSC-078, ¶ 30, 122 N.M.
618, 930 P.2d 153. 	But as we have described above, any inherent common law
jurisdiction the district courts enjoyed over correction of illegal sentences was
abrogated by the express adoption of common law, subsequent repeal, and re-insertion
of a limited version. 	“[W]hen legislation directly and clearly conflicts with the
common law, the legislation will control because it is the most recent statement of the
law.” Id. ¶ 22; cf. Washington, 549 F.3d at 911 (holding inherent power recognized
at common law “has clearly been abrogated by both statute and rule”).
{30} 	While not expressly stated, we nevertheless hold that the Rules Committee
meant to defeat the broad jurisdiction embodied in the common law by repeatedly
narrowing Rule 5-801(A). Were we to conclude otherwise, as the State requests, it

20
would necessarily require one of two constructions: (1) Rule 5-801(A) only applies
to defendants, or (2) Rule 5-801(A) is intended as mere guidance. Both constructions
render Rule 5-801(A) itself either absurd or superfluous, or make its amendments
mere nullities.
{31} 	If we were to read the rule as applying only to defendants, we would give the
State a procedural advantage in that defendants would be required to meet all the
requirements of habeas corpus under Rule 5-802, while the State would need only file
a simple motion to correct an illegal sentence. 	This approach would certainly
contradict the thrust of the Sentencing Reform Act of 1984, which was, in part, to
make sentencing more transparent and fair. Such a reading would also contradict the
apparent comprehensive nature of the Rules of Criminal Procedure for the district
courts, in which Rule 5-801(A) is embedded. The very first provision of the Rules
states that “[t]hese rules govern the procedure in the district courts of New Mexico in
all criminal proceedings.” 	Rule 5-101 NMRA (emphasis added). 	Rule 5-801 is
entitled “Modification of sentence,” and Subsection (A) is entitled “Correction of
sentence.” There is no explicit indication in any of those sources that Rule 5-801(A)
was meant to apply only to defendants or except the State from its seemingly broad
reach. 	It would be absurd, absent some indication otherwise, to construe Rule 5-
801(A) as only applying to defendants, simply because a common law principle

21
existed prior to the rule’s adoption and subsequent repeal. 	State v. Nick R., 2009-
NMSC-050, ¶ 11, 147 N.M. 182, 218 P.3d 868 (“We must take care to avoid adoption
of a construction that would render the statute’s application absurd or unreasonable
or lead to injustice or contradiction.” (internal quotation marks and citation omitted)).
{32} 	Similarly, we cannot conclude that Rule 5-801(A) is meant as mere guidance.
Although such a construction would resolve the unfairness to defendants of the
binding construction, it would contradict the application of all the Rules of Criminal
Procedure. 	As is mentioned above, the rules are meant to govern, not guide,
procedure. Furthermore, such a reading would render Rule 5-801(A) and its previous
iterations 	and 	amendments 	superfluous 	and 	nullities. 	State 	v. 	Rivera,
2004-NMSC-001, ¶ 18, 134 N.M. 768, 82 P.3d 939 (“We are generally unwilling to
construe one provision of a statute in a manner that would make other provisions null
or superfluous.”). The repealed version would have been meaningless, in that if the
common-law principle existed in Rule 57.1, and its repeal revived the same common
law rule that was adopted, the change would have been completely unnecessary.
Similarly, the re-insertion of the principle with limiting language would have had no
meaningful effect if the unlimited common law principle remained unchanged.
Truong v. Allstate Ins. Co., 2010-NMSC-009, ¶ 36, 147 N.M. 583, 227 P.3d 73 (“This
Court has long held that we must avoid constructions of statutory amendments that

22
would render the change unnecessary and meaningless.” (internal quotation marks and
citation omitted)).
SEPARATION OF POWERS
{33} 	We next explain why our interpretation of Rule 5-801(A), which serves to
define, explicitly for defendants and implicitly for the State, the procedure to obtain
review of illegal sentences does not violate separation of powers. We recognize that
“one branch of the state government may not exercise powers and duties belonging
to another,” State ex rel. State Corp. Comm’n v. McCulloh, 63 N.M. 436, 438, 321
P.2d 207, 208 (1957), and that “it is solely within the province of the Legislature to
establish penalties for criminal behavior.” 	State v. Mabry, 96 N.M. 317, 321, 630
P.2d 269, 273 (1981). We also note, however, that “the power to provide rules of
pleading, practice, and procedure for the conduct of litigation in the district courts, as
well as rules of appellate procedure, is lodged in [the Supreme Court] by the
Constitution of New Mexico.” 	Ammerman v. Hubbard Broad., Inc., 89 N.M. 307,
310-11, 551 P.2d 1354, 1357-58 (1976) (internal quotation marks and citation
omitted); see State ex rel. Anaya v. McBride, 88 N.M. 244, 246, 539 P.2d 1006, 1008
(1975) (“Our constitutional power under [the New Mexico Constitution Article III,
Section 1 and Article VI, Section 3] of superintending control over all inferior courts
carries with it the inherent power to regulate all pleading, practice and procedure

23
affecting the judicial branch of government.”).
{34} 	The State essentially argues that our interpretation of Rule 5-801(A), by
limiting the procedure by which the State can obtain review of an illegal sentence,
abridges the State’s substantive right to a particular sentence mandated by the
Legislature. See NMSA 1978, § 38-1-1(A) (1966) (stating that New Mexico Supreme
Court rules “shall not abridge, enlarge or modify the substantive rights of any
litigant”). We disagree that Rule 5-801(A) has such an affect and note that a similar
argument was rejected by this Court in State v. Montoya, 2011-NMCA-009, 149 N.M.
242, 247 P.3d 1127, cert. denied, 2011-NMCERT-001, 150 N.M. 558, ___ P.3d ___,
with respect to Rule 5-805 NMRA.
{35} 	In Montoya, the state argued that the time limits requiring dismissal of
probation revocation cases under Rule 5-805(H) abridged the state’s substantive right
to pursue probation revocations under NMSA 1978, Section 31-21-15 (1989), and
thereby violated separation of powers. Montoya, 2011-NMCA-009, ¶ 22. The Court
held that “[a]lthough [Rule 5-805(H)] can be viewed as limiting the absolute right
granted by Section 31-21-15, the Supreme Court has the clear right to establish
procedures to prevent delay in court proceedings.” Montoya, 2011-NMCA-009, ¶ 23.
The case at bar is not distinguishable in principle.
{36} 	The Supreme Court’s procedural choice, with respect to how a request to

24
correct illegal sentences should be presented to the district courts, does not abridge
substantive sentencing rights. 	Rather Rule 5-801(A), by restricting district court
jurisdiction to correct illegal sentences, “merely avoids delay in the exercise of such
rights.” Montoya, 2011-NMCA-009, ¶ 23. Promulgation of such rules falls squarely
within the Supreme Court’s rule-making power, as bestowed by the New Mexico
Constitution, and does not violate separation of powers. 	Id. ¶ 24 (“[R]ules of the
Supreme Court that affect procedure in the courts . . . are the hallmark of the Supreme
Court’s constitutional authority to control procedure in the courts of the state.”).
EFFECT ON NEW MEXICO PRECEDENT
{37} 	As a final matter, we consider the effect of Rule 5-801(A), as interpreted by this
Court. We recognize today that Rule 5-801(A), as amended by the Supreme Court,
abrogated the common law principle that a district court has inherent and unlimited
jurisdiction to correct illegal sentences. Although the abrogated principle has been
cited occasionally since its demise in 1986, only one case in that time has actually
relied on the principle in reaching its holding. Compare Abril, 2003-NMCA-111, ¶¶
17-18, 20 (relying on the abrogated principle in affirming a district court’s
modification of a sentence five days after entry of the written sentencing order), with
State v. Porras, 1999-NMCA-016, ¶¶ 7, 10, 126 N.M. 628, 973 P.2d 880 (citing the
abrogated principle as background but unnecessary to its holding that a valid sentence

25
cannot be corrected after the defendant begins serving it), State v. Ingram, 1998-
NMCA-177, ¶¶ 18-19, 126 N.M. 426, 970 P.2d 1151 (citing the abrogated principle
to support Court of Appeals’ modification of the defendant’s sentence on appeal), and
State v. Aragon, 109 N.M. 632, 638-39, 788 P.2d 932, 938-39 (Ct. App. 1990) (citing
the abrogated principle as background to its discussion on correction of sentences and
not necessary to its holding that district courts lack jurisdiction to amend sentences
during period of appeal).
{38} 	In Abril, the district court corrected its omission of a serious violent offense
enhancement five days after it entered its final written sentencing order. Citing dicta
from Aragon, the Court reasoned that “[w]here a sentence lacks a statutorily-mandated
provision, the trial court retains jurisdiction to correct the sentence by adding the
omitted term.” Abril, 2003-NMCA-111, ¶ 20. We overrule Abril to the extent that
it relied on the abrogated common law principle of inherent jurisdiction to correct
illegal sentences. Because this case involves an eighteen-year, post-appeal delay in
correcting an illegal sentence, we do not decide, and leave for another day, the extent
the result reached in Abril could be supported by some other statutory or rule-based
authority.
CONCLUSION
{39} 	Based on our analysis of Rule 5-801(A), the district court did not have

26
jurisdiction to correct Defendant’s illegal sentence. 	Accordingly, we reverse the
district court’s decision correcting Defendant’s sentence and remand for reinstatement
of Defendant’s 1988 sentence and denial of the State’s motion.
{40} 	IT IS SO ORDERED.
________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
__________________________________
MICHAEL D. BUSTAMANTE, Judge
__________________________________
LINDA M. VANZI, Judge