State v. Smith

• Court: Court of Appeals of New Mexico
• Writing for the Court: KENNEDY.
• Citation: State v. Smith, 85 P.3d 804, 135 N.M. 162, 2004 NMCA 26 (N.M. App. 2004)
• Decision Date: 12 January 2004
• Docket Number: No. 24, No. 258., No. 254, No. 253
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Kathleen SMITH, Defendant-Appellant, State of New Mexico, Plaintiff-Appellee, v. Roy Gonzales, Defendant-Appellant, State of New Mexico, Plaintiff-Appellee, v. Richard Montoya, Defendant-Appellant.

85 P.3d 804

135 N.M. 162

2004 NMCA 26

STATE of New Mexico, Plaintiff-Appellee, v. Kathleen SMITH, Defendant-Appellant, State of New Mexico, Plaintiff-Appellee, v. Roy Gonzales, Defendant-Appellant, State of New Mexico, Plaintiff-Appellee, v. Richard Montoya, Defendant-Appellant.

Nos. 24,253, 24,254, 24,258.

Court of Appeals of New Mexico.

January 12, 2004.

Certiorari Granted February 16, 2004.

Patricia A. Madrid, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, NM, for Plaintiff-Appellee.

John B. Bigelow, Chief Public Defender, Sue A. Herrmann, Assistant Appellate Defender, Santa Fe, NM, for Defendants-Appellants.

Certiorari Granted, No. 28,477, February 16, 2004.

OPINION

KENNEDY, Judge.

{1} In these three consolidated appeals, we consider the effect of successive amendments to the driving while under the influence of liquor (DWI) statute on a felony DWI sentencing. See NMSA 1978, § 66-8-102 (1953, as amended through 2003). We hold that the last amendment of the statute that was enacted by the legislature governs the sentencing of Defendants herein, and accordingly reverse and remand for resentencing under the proper statute.

BACKGROUND

{2} On March 19, 2003, HB 250, 2003 N.M. Laws Ch. 51, became law when signed by the Governor pursuant to its emergency clause. This law did not change the existing provision of Section 66-8-102(G).

{3} On March 28, 2003, the Governor signed into effect HB 117, 2003 N.M. Laws Ch. 90, § 3, that extensively amended the sentencing provisions of the DWI statute by increasing the penalties for felony offenses for those who have committed four through seven offenses. Section 66-8-102. The law contained an emergency clause, making it effective upon its passage and signature by the Governor on March 28, 2003.

{4} On April 5, 2003, the Governor signed another amendment to Section 66-8-102. In HB 278, the Legislature amended Section 66-8-102(G) yet again, eliminating the amendments that HB 117 created as subsections (H) through (J), and returning felony DWI sentencing to its original language. 2003 N.M. Laws Ch. 164 § 10. This amendment contained no emergency clause and became law on July 1, 2003. This is the law currently appearing in New Mexico Statutes Annotated.

{5} This case comes to the Court pursuant to its summary calendar disposition. We issue this formal opinion for two reasons: (1) the issue presented is clearly governed by existing law; and (2) clarifying the issue is one of immediate importance to the courts and practitioners concerned with which felony DWI sentencing regime should apply after July 1, 2003. The issue in this case is one concerning statutory enactment and compilation. That the controversy arises in the context of a pressing social problem (DWI) or has collateral consequences to federal highway funding issues is secondary to our role in determining this case.

{6} We issued a calendar notice proposing to hold that Defendants should have been sentenced under HB 278 pursuant to a statutory provision requiring imposition of a lesser punishment if a defendant is sentenced after the effective date of an amendment reducing the sentence. The State responded with a memorandum in opposition. For the reasons that follow, we are unpersuaded and hold that HB 278 is the controlling law after July 1, 2003, and should have been applied in all three cases.

DISCUSSION

{7} We hold that the sentences here are controlled by NMSA 1978, § 12-2A-16(C) (1997) which provides: "If a criminal penalty for a violation of a statute or rule is reduced by an amendment, the penalty, if not already imposed, must be imposed under the statute or rule as amended." As Defendants had not been sentenced on July 1, 2003, the effective date of HB 278, we hold that the sentencing provisions contained therein should apply to Defendants' sentences.

{8} In its memorandum in opposition, the State argues that a close review of the amendments to Section 66-8-102 during the 2003 legislative session indicate that the changes to the felony DWI provisions contained in HB 117 were intended to remain in effect beyond the July 1, 2003, effective date of HB 278. The Legislature made three independent changes to the DWI statute during the 2003 session. In drafting these amendments, the Legislature prefaced each amendment with language providing the statute section which was to be amended followed by the full text of the statute as amended. The first, titled "New Mexico Commercial Driver's License Act," and designated HB 250, was signed into law on March 19, 2003. See 2003 N.M. Laws Ch. 51. The bill retained the preexisting felony DWI punishment contained in Section 66-8-102(G):

Upon a fourth or subsequent conviction pursuant to this section, an offender is guilty of a fourth degree felony, as provided in Section 31-18-15 NMSA 1978, and shall be sentenced to a jail term of not less than six months, which shall not be suspended or deferred or taken under advisement.

Ch. 51, § 10(G).

{9} The second related bill to pass in the 2003 legislative session was HB 117. The bill substantially rewrote Section 66-8-102, including the following changes to the felony provisions of the statute:

G. Upon a fourth conviction pursuant to this section, an offender is guilty of a fourth degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of eighteen months, six months of which shall not be suspended or deferred or taken under advisement.

H. Upon a fifth conviction pursuant to this section, an offender is guilty of a fourth degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of two years, one year of which shall not be suspended, deferred or taken under advisement.

I. Upon a sixth conviction pursuant to this section, an offender is guilty of a third degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of thirty months, eighteen months of which shall not be suspended, deferred or taken under advisement.

J. Upon a seventh or subsequent conviction pursuant to this section, an offender is guilty of a third degree felony and, notwithstanding the provisions of Section 31-18-15 NMSA 1978, shall be sentenced to a term of imprisonment of three years, two years of which shall not be suspended, deferred or taken under advisement.

{10} HB 117 also included an emergency clause, declaring: "It is necessary for the public peace, health and safety that this act take effect immediately." Ch. 90, § 10. The bill was approved on March 28, 2003, and immediately signed into law by the Governor. Ch. 90, § 10.

{11} The third bill to pass in the 2003 legislative session was HB 278, titled "An Act Relating to Motor Vehicles; Authorizing Intergovernmental Agreements For Exchange of Motor Vehicle Offense Information Between Tribes and the State." Among other things, HB 278 included a new provision recognizing DWI offenses that were committed on tribal lands, and authorized intergovernmental agreements for exchange of information. HB 278, Ch. 164, § 8 (codified as NMSA 1978, § 66-5-27.1 (2003)). With respect to Section 66-8-102 specifically, language was added reflecting the application of its provisions to tribal lands. HB 278, Ch. 164, § 10(M) (codified as NMSA 1978, § 66-8-102(M) (2003)). Critical to our analysis, HB 278 restates the felony DWI language that existed prior to the effective date of HB 117:

Upon a fourth or subsequent conviction pursuant to this section, an offender is guilty of a fourth degree felony, as provided in Section 31-18-15 NMSA 1978, and shall be sentenced to a jail term of not less than six months, which shall not be suspended or deferred or taken under advisement.

Ch. 164, § 10(G) (codified as NMSA 1978, § 66-8-102(G) (2003)). HB 278 was approved on April 4, 2003, and given an effective date of July 1, 2003. HB 278, Ch. 164, § 11.

{12} In its memorandum in opposition, the State initially observes that the chronology of events listed above indicates that all three bills complied with procedural requirements to become good law. In such circumstances, the Legislature has provided the following guidance in NMSA 1978, § 12-1-8 (1977), for purposes of the compilation of statutes:

In carrying out the duties provided by law and contract, absent an expressed contrary legislative intent, the secretary of the New Mexico compilation commission and the advisory committee of the supreme court shall be governed by the following rules:

A. if two or more acts are enacted during the same session of the legislature amending the same section of the NMSA, regardless of the effective date of the acts, the act last signed by the governor shall be presumed to be the law and shall be compiled in the NMSA. The history following the amended section shall set forth the section, chapter and year of all acts amending the section. A compiler's note shall be included in the annotations setting forth the nature of the difference between the acts or sections; and

B. if two or more irreconcilable acts dealing with the same subject matter are enacted by the same session of the legislature, the last act signed by the governor shall be presumed to be the law. The act last signed by the governor shall be compiled in the NMSA with an annotation following the compiled section setting forth in full the text of the conflicting acts.

Indeed, the New Mexico Compilation Commission has followed this mandate, and HB 278 is contained in Pamphlet 105 of the 2003 Cumulative Supplement to Section 66-8-102.

{13} This legislative guidance reflects long-standing rules of judicial interpretation of statutes, including that the legislature is presumed to know existing law when it enacts a statute, see, e.g., State v. Alderette, 111 N.M. 297, 299, 804 P.2d 1116, 1118 (Ct. App.1990), and that the latest statute controls when...