458 P.2d 586

#### Edward Rivera TORRES, Plaintiff-Appellant, v. STATE of New Mexico, Defendant-Appellee.

No. 8807.

Supreme Court of New Mexico.

Sept. 8, 1969.

*512Joseph A. Roberts, Santa Fe, for plaintiff-appellant.

James A. Maloney, Atty. Gen., Robert J. Laughlin, Asst. Atty. Gen., Santa Fe, for defendant-appellee.

OPINION

COMPTON, Justice.

This is an appeal from an order denying post conviction relief under Rule 93, § 21-1—1(93), N.M.S.A.1953 (1967 Supp.), without a hearing.

Following a plea of guilty to murder in the second degree, appellant was sentenced to serve a term in the state penitentiary of not less than three years nor more than life. The statute under which he was sentenced, § 40-24-10, N.M.S.A. 1953, (since repealed), provides that imprisonment for second degree murder shall be “for any period of time not less than three [3] years."

Appellant here contends that the court committed error in fixing life imprisonment as the maximum penalty, and that we should reconsider State v. Maestas, 63 N.M. 67, 313 P.2d 337. The contention must be rejected. The statute was given due consideration in State v. Maestas, supra, and we conclude that appellant was properly sentenced.

The order should be affirmed.

It is so ordered.

MOISE, J., and JAMES W. MUS-GROVE, District Judge, concur.