In New Mexico, as in most states, felonies are serious crimes that may be punished by a year or more in prison. In contrast, misdemeanors in New Mexico carry potential punishment of less than a year in local jail.
For purposes of sentencing, New Mexico categorizes felonies into five groups: capital felonies and first-, second-, third-, and fourth-degree felonies. But the category of felony isn't the only thing that determines the sentence you'll receive if you're convicted. Other factors that could affect your sentence include your criminal history and the circumstances surrounding the crime. Read on for details.
New Mexico law lays out the basic prison sentences for each of the different categories of felonies. Except for capital felonies, these basic sentences are the maximum term of imprisonment for that degree of felony before any sentence enhancements (more on that below). The law also specifies the maximum fines that judges may order in addition to a prison sentence. (N.M. Stat. § 31-21-1 (2020).)
Some individual felonies carry minimum prison sentences. For example, second-degree criminal sexual penetration (rape) of a victim between 13 and 18 years old requires a minimum prison sentence of three years, up to the basic maximum for all second-degree felonies. (N.M. Stat. § 30-9-11 (2020).)
Anyone convicted of a capital felony (first-degree murder) must receive a sentence of life in prison. (New Mexico abolished the death penalty for capital felonies in 2009.) Anyone serving a life sentence will be eligible for parole consideration after serving 30 years. However, if the jury finds that the capital felony involved certain aggravating circumstances, the sentence must be life without the possibility of parole. (N.M. Stat. §§ 30-2-1, 31-18-14, 31-20a-2, 31-20a-5, 31-21-10
Most first-degree felonies carry a basic prison sentence of up to 18 years, plus a possible fine up to $15,000. However, if the felony resulted in the death of a child or was for aggravated criminal sexual penetration, the maximum penalty is life in prison plus a fine of $17,500.
Some other examples of first-degree felonies include kidnapping and sex trafficking a minor under age 13. (N.M. Stat. §§ 30-4-1, 30-5201, 31-18-15 (2020).)
The basic sentence for most second-degree felonies is up to nine years in prison, plus a maximum fine of $10,000. The sentence is different if the felony resulted in death or involved a sexual offense against a child (up to 15 years in prison and a $12,500 fine) or if it involved sexual exploitation of a child (up to 12 years in prison and a $5,000 fine).
Third-degree felonies carry a basic sentence of up to three years in prison and a possible fine of up to $5,000. Although the potential fines remain the same, the maximum basic prison sentences are lengthier if the felony resulted in death or was a sexual offense against a child (up to six years), or if it involved sexual exploitation of a child (up to 11 years).
Examples of third-degree felonies include voluntary manslaughter, residential burglary, distributing marijuana to a minor, and aggravated assault on a healthcare workers. (N.M. Stat. §§ 30-2-3, 30-3-9.2, 30-16-3, 30-31-21, 31-18-15 (2020).)
A defendant convicted of a fourth-degree felony in New Mexico generally faces up to 18 months in prison and a fine up to $5,000. The maximum prison sentence is 10 years if the crime involved sexual exploitation of a child.
Examples of fourth-degree felonies include larceny (theft) of property worth more than $500 but no more than $2,500, personal possession of some illegal drugs (including methamphetamine and opiates), and aggravated assault. (N.M. Stat. §§ 30-3-2, 30-16-1, 30-31-23, 31-18-15 (2020).)
New Mexico uses determinate sentencing—meaning that if you're convicted of a felony, the judge will sentence you to a fixed term in prison, up to the legal maximum for your crime. However, the judge may alter the basic sentence (by as much as a third) if evidence at the sentencing hearing shows that there were mitigating or aggravating circumstances surrounding the crime or in your background. (Usually, the jury must find any aggravating circumstances.) (N.M. Stat. § 31-18-15.1 (2020).)
In addition to the alterations in basic sentences for aggravating or mitigating circumstances, New Mexico law requires an increase in those basic sentences in certain situations, including when the defendant has previous felony convictions and when the current offense was a hate crime.
Under New Mexico's habitual offender laws, if someone convicted of a felony (other than a capital felony) has previous felony convictions, the basic maximum sentence for the current crime will be increased by the following amounts:
Any defendant convicted of a third violent felony or a second violent sex offense must receive a life sentence. (N.M. Stat. §§ 31-18-17, 31-18-23, 31-38-25 (2020).)
Also, some individual crimes are classified as a lower-level felony for a first offense but as a more serious felony for subsequent offenses, and some misdemeanors become felonies when the defendant has previous convictions for the same crime. For instance, stalking is a misdemeanor for a first offense but a fourth-degree felony for a second or subsequent offense. Aggravated stalking (which includes stalking in violation of a court order) is a fourth-degree felony for a first offense but a third-degree felony for a second or subsequent offense. (N.M. Stat. §§ 30-3a-3, 30-3a-3.1 (2020).)
The basic sentence for noncapital felonies will increase by one year when the jury finds it was a hate crime—meaning that it was motivated by the victim's actual or perceived race, color, religion, national origin, ancestry, age, disability, gender, gender identity, or sexual orientation. If the defendant had a previous conviction for a hate crime, the basic sentence will go up by two years. (N.M. Stat. § 31-18b-3 (2020).)
In some felony cases, the court may defer or suspend the prison sentence (in whole or in part) and place the defendant on probation, with or without conditions, if that will serve the best interests of both the public and the defendant.
New Mexico doesn't allow deferred or suspended sentences for capital or first-degree felonies, for felonies that require a mandatory minimum prison sentence, or in most cases involving habitual offenders. However, if the defendant only had one prior felony conviction, and both the prior and current crimes were nonviolent felonies, the sentence may be deferred or suspended if the judge finds there are "substantial and compelling reasons" for doing so.
Some young felony offenders may be eligible for a special incarceration alternative program that includes training, substance abuse treatment, and counseling. If the court accepts the recommendation of the corrections department that an eligible young person is suitable for participation, the judge will suspend the remainder of the sentence and place the defendant on probation, conditioned on successful completion of the structured, 90-day program. Defendants aren't eligible for this alternative to prison if they're older than 30, have already participated in the same program, have been convicted of certain serious crimes, or have previously served time in prison for a felony. (N.M. Stat. §§ 31-18-17, 31-18-22, 31-20-3, 31-20-5 (2020).)
A felony conviction results in serious, long-term consequences. If you're convicted later of another felony, that prior conviction will result in a stiffer sentence. Convicted felons are prohibited from having guns, and they might find it difficult to get a job or rent a home.
An experienced criminal defense lawyer can determine whether you have any grounds for dismissal of the charges against you, explore plea options, and represent you at trial if it comes to that. A knowledgeable attorney who's familiar with the local criminal court system and cases like yours should be able to guide you through the complex criminal process and protect your rights.