2018 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 36 - Worthless Checks
Section 30-36-5 - Penalty.
Any person violating Section 30-36-4 NMSA 1978 shall be punished as follows:
A. when the amount of the check, draft or order, or the total amount of the checks, drafts or orders, are for more than one dollar ($1.00) but less than twenty-five dollars ($25.00), imprisonment in the county jail for a term of not more than thirty days or a fine of not more than one hundred dollars ($100), or both such imprisonment and fine;
B. when the amount of the check, draft or order, or the total amount of the checks, drafts or orders, are for twenty-five dollars ($25.00) or more, imprisonment in the penitentiary for a term of not less than one year nor more than three years or the payment of a fine of not more than one thousand dollars ($1,000) or both such imprisonment and fine.
History: 1953 Comp., § 40-49-5, enacted by Laws 1965, ch. 114, § 1.
Repeals and reenactments. — Laws 1965, ch. 114, § 1, repealed 40-49-5, 1953 Comp., relating to penalties for the writing of bad checks, and enacted a new section.
Totaling provisions unconstitutional. — The provisions of this section, concerning the "totaling" of amounts of worthless checks, are so vague that they offend due process and are void. State v. Ferris, 1969-NMCA-093, 80 N.M. 663, 459 P.2d 462.
Totaling provisions severable. — While the "totaling" provisions of this section are void, they may be severed from this section, leaving the remaining portion thereof consistent with 30-36-4 NMSA 1978, which makes an offense out of each worthless check issued. State v. Ferris, 1969-NMCA-093, 80 N.M. 663, 459 P.2d 462.
Frivolous to infer rest of statute unconstitutionally vague. — An inference that because the totaling provision of this section was held unconstitutionally vague, other parts of the Worthless Check Act (30-36-1 to 30-36-9 NMSA 1978) are also unconstitutionally vague was frivolous. State v. Libero, 1978-NMCA-055, 91 N.M. 780, 581 P.2d 873, cert. denied, 92 N.M. 180, 585 P.2d 324.
Quashing of information unwarranted. — The trial court correctly held that defendant could not be punished under Subsection B of this section by "totaling" two checks, but erred in quashing the information, since defendant could still be punished for each worthless check that he had issued. State v. Conners, 1969-NMCA-096, 80 N.M. 662, 459 P.2d 461.
Since defendant was convicted of issuing four worthless checks, he could have been sentenced for each offense under the portion of this section remaining after severance of the provisions on totaling; therefore, the trial court erred in dismissing the information. State v. Ferris, 1969-NMCA-093, 80 N.M. 663, 459 P.2d 462.
Reinstatement of charges not double jeopardy. — Dismissal of the information before the entering of a plea because of the unconstitutional vagueness of the "totaling" provision of this section did not place defendant in jeopardy, and, therefore, reinstatement of the information did not subject him to double jeopardy. State v. Ferris, 1969-NMCA-093, 80 N.M. 663, 459 P.2d 462.
Felony degree for violation of Subsection B. — The offense of issuing a worthless check over $25.00 is a "felony" but could not constitute a "fourth degree felony" because the minimum sentence imposed for issuing worthless checks is less than the stated sentence for fourth degree felonies. State v. Muzio, 1987-NMCA-006, 105 N.M. 352, 732 P.2d 879.
Sentence not severable. — A sentence of six to eight years for utterance of fraudulent checks by habitual criminal could not be considered a sentence of five years for uttering fraudulent checks since judgment was not severable. Jordan v. Swope, 1932-NMSC-015, 36 N.M. 84, 8 P.2d 788.
Totaling provisions vague. — The cumulative provisions in this section relating to penalties are vague, indefinite and uncertain. 1966 Op. Att'y Gen. No. 66-80.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 35 C.J.S. False Pretenses § 56.
