2020 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 21 - Sentence, Pardons and Paroles
Section 31-21-1 - [Construction of statutory provisions prescribing term of imprisonment; maximum or minimum.]

In all penal statutes of the state where by the terms of such statutes a definite punishment of imprisonment in the penitentiary is prescribed the time of such imprisonment in such statute shall be construed to be the maximum of imprisonment, unless such statutes expressly provide that such time is the minimum.

History: Laws 1909, ch. 32, § 10; Code 1915, § 5425; C.S. 1929, § 139-103; 1941 Comp., § 42-1702; 1953 Comp., § 41-17-2.

Cross references. — For juvenile probation services, see 32A-2-5 and 32A-2-24 NMSA 1978.

For separate sentences construed as cumulative, see 33-2-39 NMSA 1978.

For inapplicability of the Rules of Evidence to sentencing procedures, see Rule 11-1101 NMRA.

Credit for time already served. — Prisoner was entitled to credit for time served under prior void sentence when he was resentenced following habeas corpus proceeding to correct improper sentence. Sneed v. Cox, 1964-NMSC-250, 74 N.M. 659, 397 P.2d 308.

No credit for time served under void, original proceeding. — The Sneed v. Cox, 1964-NMSC-250, 74 N.M. 659, 397 P.2d 308, rule is applicable when an erroneous sentence is being corrected, but does not apply where the original proceeding was void for lack of jurisdiction even though time was served under a conviction found to be void because of absence of jurisdiction, credit may not be give for such time served when the prisoner is, on a subsequent trial, validly convicted of the same offense and given a new sentence. Morgan v. Cox, 1965-NMSC-108, 75 N.M. 472, 406 P.2d 347.

Section inapplicable when sentence prescribes indefinite punishment. — Section 42-1-61, 1953 Comp. (repealed), which provided for a sentence of "not less than two years," does not by its terms prescribe a definite punishment, but only a minimum, and this section is therefore inapplicable by its own terms. Jones v. Cox, 1964-NMSC-023, 73 N.M. 450, 389 P.2d 214 (decided under prior law).

Section inapplicable in determining maximum sentence for sodomy. — This section was inapplicable in determining maximum sentence imposed under 40-7-7, 1953 Comp. (repealed), providing imprisonment for not less than one year for sodomy. Starkey v. Cox, 1964-NMSC-020, 73 N.M. 434, 389 P.2d 203 (decided under prior law).

Court must consider whether petitioner deprived of section's benefits. — The right to see the parole board which arises under the parole laws is not a matter of grace, and in order to fully comply with the purpose intended to be served by the indeterminate sentencing statute and the parole statutes, the supreme court must consider whether petitioner is deprived of the benefits arising under the statutory minimum when his parole board interview is denied by virtue of a sentence which did not conform to the statute. Sneed v. Cox, 1964-NMSC-250, 74 N.M. 659, 397 P.2d 308.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law §§ 613, 829, 830, 942, 972, 973.

Validity, under indeterminate sentence law, of sentence fixing identical minimum and maximum terms of imprisonment, 29 A.L.R. 1344.

24 C.J.S. Criminal Law §§ 1468, 1505.