{
  "id": 2770740,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Robert ATENCIO, Defendant-Appellant",
  "name_abbreviation": "State v. Atencio",
  "decision_date": "1973-07-18",
  "docket_number": "No. 1119",
  "first_page": "484",
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  "last_updated": "2023-07-14T15:38:26.265107+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "HENDLEY and LOPEZ, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Robert ATENCIO, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nSUTIN, Judge.\nDefendant was convicted of possession of heroin with intent to distribute it. Section 54-11-20(A) (3), (B), N.M.S.A. 1953 (1972 Int.Supp.). He appeals. We affirm.\nDefendant was charged with \u201cTrafficking in a Controlled Substance, to-wit: Heroin, contrary to Chapter 84, New Mexico Laws 1972\u201d; that defendant \u201cdid possess with intent to distribute a controlled substance, to-wit: heroin.\u201d The particular section of the Controlled Substances Act violated w\u00e1s not stated.\nA. Defendant was properly charged.\nSection 54-ll-20(A) (3), (B) provides that it is unlawful for any person to intentionally possess \u201cwith intent to distribute any controlled substance enumerated in Schedules I or II which is a narcotic drug.\u201d Schedule 1(B) (10) lists \u201cheroin\u201d.\nSection 54 \u2014 11-22(A) provides in part:\n. [I]t is unlawful for any person to intentionally distribute or possess with intent to distribute a controlled substance except a substance enumerated in Schedules I or II which is a narcotic drug. [Emphasis added]\nThis section provides for unlawful conduct in which other controlled substances are involved exclusive of narcotic drugs enumerated in Schedules I and II.\nDefendant contends that the emphasized language means \u201cthat it is unlawful to possess with intent to distribute a controlled substance in Schedule I except a narcotic drug .... What the Defendant in this case clearly did was not a crime.\u201d We cannot agree.\nThe word \u201cexcept\u201d as used in the above section means \u201cexclude\u201d. Webster\u2019s Third New International Dictionary Unabridged, at 791 (1966); Rickman v. Commonwealth, 195 Ky. 715, 243 S.W. 929 (1922).\nThe \u201cexcept\u201d language \u201cexcludes\u201d a narcotic drug such as heroin enumerated in Schedule I. There is no conflict between the two sections, supra. Defendant was properly charged under \u00a7 54-11-20(A)(3), (B).\nB. Heroin was a narcotic drug.\nDefendant contends \u201c[T]here was no proof . . . that the heroin was a narcotic drug as is defined in the Controlled Substances Act\u201d.\nSection 54-11-2 (P) defines \u201cnarcotic drug\u201d as follows:\nP. \u201cNarcotic drug\u201d means .\n(1) opium and opiate, and any salt, compound, derivative or preparation of opium or opiate;\nSchedule I, \u00a7 54-11-6 (B) (10) lists heroin as an opium derivative.\nProof that tests were made to show that the substance possessed by defendant was heroin, was sufficient proof that heroin was a narcotic drug. The burden of proof is on the defendant, not the State, to prove that the substance identified as heroin was not a narcotic drug as an exemption or exception. Section 54-11-36. No such proof was made by defendant. United States v. Rowlette, 397 F.2d 475 (7th Cir. 1968).\nC. The Controlled Substances Act is constitutional.\nDefendant contends \u00a7\u00a7 54-11-20 through 54-11-25 which define unlawful activities and provide penalties are unconstitutional because \u201cunlawful activities\u201d are not mentioned in the title of the Act. N. M.Const. art. 4, \u00a7 16. We find no merit to this contention. City of Albuquerque v. Garcia, 84 N.M. 776, 508 P.2d 585 (1973).\nD. The sentence imposed is not subject to appeal.\nDefendant was sentenced for a term of not less than ten years nor more than fifty years for a second degree felony set forth in \u00a7 54-11-20 (B). In orally imposing the penalty, the trial court said:\n[U]nder this new law, the sentencing is mandatory on the part of the Court .... I will impose the statutory and mandatory penalty of ten to fifty years in the penitentiary.\nThe defendant contends this case should be returned to the trial court for a redetermination of the sentence since the judge believed he had no discretion and could not suspend adoption of the sentence or defer sentence or put defendant on probation.\nSection 40A-29-3(B), N.M.S. A.1953 (2nd Repl.Vol. 6) provides the penalty for a crime constituting second degree felony. It is not a \u201cmandatory penalty\u201d because it does not prohibit suspension of sentence or probation. Jones v. United States, 419 F.2d 593 (8th Cir. 1969). The trial judge had discretionary authority to defer imposition of the sentence, suspend the sentence in whole or in part or to seek a report as to what disposition appears best. Section 40A-29-15, N.M.S.A.1953 (2nd Repl.Vol. 6). If sentence was deferred or suspended, the trial court must order the defendant placed on probation. Section 40A-29-17, N.M.S.A.1953 (2nd Repl.Vol. 6); State v. Serrano, 76 N.M. 655, 417 P.2d 795 (1966).\nThe trial court, however, did not state that it had no discretion, or no power, to defer or suspend the sentence or put the defendant on probation. Although the language used was erroneous, the trial court did not abuse its discretion. Serrano, supra.\nFurthermore, an oral statement by the trial court after conviction before judgment and sentence is not binding. It is merely evidence of what the trial court decided to do \u2014 a decision that the trial court can change at any time before the entry of the judgment and sentence. State v. Dodson, 83 N.M. 11, 487 P.2d 921 (Ct.App.1971). Defendant was convicted July 6, 1972 and judgment and sentence entered July 11, 1972. The question of \u201cmandatory penalty\u201d was not raised before or after judgment and sentence. Not having been raised in the trial court, it cannot be raised for the first time on appeal.\nOther points raised do not require discussion.\nAffirmed.\nIt is so ordered.\nHENDLEY and LOPEZ, JJ., concur.",
        "type": "majority",
        "author": "SUTIN, Judge."
      }
    ],
    "attorneys": [
      "Harold H. Parker, Albuquerque, for defendant-appellant.",
      "David L. Norvell, Atty. Gen., Ronald Van Amberg, Randolph B. Felker, Asst. Attys. Gen., Santa Fe, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "513 P.2d 1266\nSTATE of New Mexico, Plaintiff-Appellee, v. Robert ATENCIO, Defendant-Appellant.\nNo. 1119.\nCourt of Appeals of New Mexico.\nJuly 18, 1973.\nCertiorari Denied Aug. 13, 1973.\nHarold H. Parker, Albuquerque, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Ronald Van Amberg, Randolph B. Felker, Asst. Attys. Gen., Santa Fe, for plaintiff-appellee."
  },
  "file_name": "0484-01",
  "first_page_order": 546,
  "last_page_order": 549
}