January 7, 2019- State of New Mexico v. Rakeem Holland, No. A-1-CA-37377

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
·3 	Plaintiff-Appellant,
4 v. 	A-1-CA-37377
5 RAKEEM HOLLAND,
6 	Defendant-Appellee.
7 APPEAL FROM THE DISTRICT COURT OF DONA ANA 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
17 VANZI, Chief Judge.
MEMORANDUM OPINION
18 	{l} 	The State appeals from a district court order revoking Defendant's probation
19 and resentencing him. We issued a calendar notice proposing to reverse. Defendant
20 has responded with a memorandum in opposition. We reverse the district court.
21 	{2} 	In this case, Defendant plead guilty in 2016 to aggravated fleeing and DWI.
22 	[RP 63] The plea contains an admission of identity to two prior felonies. [RP 63-64]
Court of Appeals of New Mexico
Filed 1/7/2019 11:34 AM
Mark Reynolds

1 The State only sought to enhance his sentence with one of the two prior.felonies, but
2 the plea informed Defendant that he could be subject to use of both priors upon
3 revocation of his probation. [RP 64, 66] Pursuant to the plea, only a single prior was
4 used in the judgment and sentence, resulting in each felony being enhanced by one
5 year. [RP 75-76] Defendant's probation was thereafter revoked, and the State sought
6 a four-year enhancement for each felony, based on the use of both priors, with credit
7 for any time served under the additional enhancement. [RP 107] See NMSA 1978, §
8 31-18-17(B) (2003) (mandating a four-year enhancement where the defendant has
9 two priors). The district court ruled that the State had "used up" the first felony in the
10 first sentence, and the use of a second prior at resentencing would only tack on an
11 	additional year apiece to the enhancements. [RP 129]
12 	{3} 	In State v. Freed, 1996-NMCA-044, 121 N.M. 569,915 P.2d 325, this Court
13 	was presented with the identical issue that we have here. We concluded that the
14 State's use of only a single prior felony in the original sentence did not preclude it
15 	from using that same prior felony for purposes of seeking a greater enhancement in
16 the second sentence. Id. , 	7. We noted that the second judgment supersedes the
17 original judgment, and therefore all prior felonies charged by the State control the
18 period of enhancement. Id. There, as here, the State could use both the single felony
2

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