2020 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 18 - Criminal Sentencing
Section 31-18-21 - Consecutive sentences; inmates and persons at large.

A. Whenever an inmate in a penal institution of this state or of any county therein is sentenced for committing any felony while he is an inmate, the sentence imposed shall be consecutive to the sentence being served, and his period of parole shall be that set according to the provisions of Section 31-21-10 NMSA 1978.

B. Any person, who commits a crime while at large under a suspended or deferred sentence or probation or parole, and who is convicted and sentenced therefor, shall serve the sentence consecutive to the remainder of the term, including remaining parole time, under which he was released unless otherwise ordered by the court in sentencing for the new crime.

History: 1953 Comp., § 40A-29-34, enacted by Laws 1977, ch. 216, § 10.

Intent of legislature. — Construing Subsection A of this section together with the other sentencing statutes in the Criminal Sentencing Act leads to the inescapable conclusion that the legislature intended to impose harsher and more certain punishment on inmates who commit crimes while incarcerated. State v. Davis, 2003-NMSC-022, 134 N.M. 172, 74 P.3d 1064.

The legislature intended sentencing courts to stack the sentences of inmates who are convicted of crimes while incarcerated. State v. Davis, 2003-NMSC-022, 134 N.M. 172, 74 P.3d 1064.

Prison disciplinary measures do not bar subsequent prosecution in a criminal action for violation of a penal statute prohibiting the same act which was the basis of the person's discipline. Washington v. Rodriguez, 1971-NMCA-021, 82 N.M. 428, 483 P.2d 309.

Consecutive sentences proper. — Court may, at its discretion, impose consecutive sentences. State v. Frederick, 1964-NMSC-045, 74 N.M. 42, 390 P.2d 281.

Modification of sentences in parole revocation. — In a parole revocation, the court may only modify an existing sentence. When the existing sentence is consecutive to a previous sentence, the court may make the existing sentence concurrent because doing so does not increase the sentence. However, the court may not change a sentence that was originally concurrent to be consecutive because doing so would increase the sentence. In a first sentence, however, Subsection B of Section 31-18-21 NMSA 1978 is never applicable and the sentence cannot be made concurrent or consecutive with a later sentence as a result of probation violation because for a first sentence there is no concurrent or consecutive status to be modified. To hold otherwise would allow probation revocations for previous convictions to undermine concurrent or consecutive sentences for later convictions. State v. Rapchack, 2011-NMCA-116, 150 N.M. 716, 265 P.3d 1289, cert. denied, 2011-NMCERT-010.

Subsection B of Section 31-18-21 NMSA 1978 applies to sentences as originally imposed. The order of probation revocation does not change the character or original order of the sentences. State v. Rapchack, 2011-NMCA-116, 150 N.M. 716, 265 P.3d 1289, cert. denied, 2011-NMCERT-010.

Modification of multiple sentences in parole revocation. — Where defendant pleaded guilty to burglary of a vehicle and the first judge suspended defendant's sentence; defendant subsequently pleaded guilty to auto-theft related crimes before a second judge and the second judge suspended defendant's sentence and ordered the sentence to be served consecutive to the sentence in the burglary case; defendant was later arrested for a third crime; in 2008, the second judge revoked defendant's probation in the auto-theft case; in 2009, first judge revoked defendant's probation in the burglary case and ordered that the sentence in the burglary case be served concurrently with the sentence in the auto-theft case; and the first judge later corrected the order to state that the sentence in the burglary case would not run concurrently with the sentence in the auto-theft case, the order making the sentence in the burglary case concurrent with the sentence in the auto-theft case was contrary to law and the first judge had the power to correct the order, because the sentence in the burglary case was the first sentence, the first sentence could not originally have been concurrent with or consecutive to anything and could not be modified to become concurrent or consecutive. State v. Rapchack, 2011-NMCA-116, 150 N.M. 716, 265 P.3d 1289, cert. denied, 2011-NMCERT-010.

Sentencing judge has no discretion under this section regarding whether a sentence is to be served consecutively or concurrently. The legislature's use of the word "shall" in Subsection A makes consecutive sentencing mandatory. State v. Davis, 2003-NMSC-022, 134 N.M. 172, 74 P.3d 1064.

Section alters common-law rule. — The common-law rule is that in the absence of statute two or more sentences are to be served concurrently unless otherwise ordered by the court. This section alters the common-law rule only as to crimes committed while at large under a sentence for a prior crime. Deats v. State, 1972-NMCA-155, 84 N.M. 405, 503 P.2d 1183.

Unless court orders otherwise, section postpones stated beginning date of new sentence until the prior sentence is completed. Herring v. State, 1969-NMCA-117, 81 N.M. 21, 462 P.2d 468.

Beginning date of sentence. — Sentence imposed upon defendant while he was on parole from prior sentence ran consecutive to prior sentence although trial court stated beginning date for new sentence but did not order that it run concurrently with prior sentence. Herring v. State, 1969-NMCA-117, 81 N.M. 21, 462 P.2d 468.

Although the beginning date of the new sentences imposed following conviction of forgery was stated in the commitment of defendant on parole, that beginning date was postponed by this section where the trial court did not order otherwise; further, the record showed that the court did not intend the sentences for the three forgeries to run concurrently with any other sentence imposed upon defendant. State v. Upshaw, 1968-NMCA-070, 79 N.M. 484, 444 P.2d 995.

Effect of return of defendant to penitentiary before trial. — Defendant's assertion that the district court lost jurisdiction over him because he was "released" to the penitentiary for parole violation before being tried did not raise any issue of illegality. The parole authorities could revoke defendant's parole and return him to the penitentiary for a parole violation, and this section clearly contemplates the conviction and sentence of a person for a crime committed while at large under parole. State v. Ford, 1970-NMCA-061, 81 N.M. 556, 469 P.2d 535.

"Presentence" confinement credit not allowed. — This section mandates that a sentence for a felony committed while serving a sentence in a penal institution run consecutive to the prior sentence. It is impossible to grant "presentence" confinement credit concurrent with time served on the prior sentence and comply with this section, which requires that the sentences run consecutively. State v. Facteau, 1990-NMSC-040, 109 N.M. 748, 790 P.2d 1029.

Discretionary award of presentence confinement credit for offense committed while on probation. — Since defendant was outside of a penal institution on parole when he committed a second offense (possession of drug paraphernalia), the sentencing judge had discretion under Subsection B to make defendant's sentence run concurrent or consecutive to any sentence defendant was then serving for a parole violation, including the authority to award presentence confinement credit on the facts of the case. State v. Irvin, 1992-NMCA-121, 114 N.M. 597, 844 P.2d 847.

Law reviews. — For article, "The Proposed New Mexico Criminal Code," see 1 Nat. Resources J. 122 (1961).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Sentencing for new offenses committed while accused was on parole or conditional release as concurrent or consecutive, 116 A.L.R. 811.