{
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    "judges": [
      "Lopez, J., dissented and filed opinion.",
      "HENDLEY, J\u201e concurs.",
      "LOPEZ, J., dissents."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Anthony HERRERA, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nSUTIN, Judge.\nDefendant was sentenced for a term of not less than ten nor more than fifty years for unlawful distribution of heroin pursuant to \u00a7 54-ll-20(B), N.M.S.A.1953 (Repl.Vol. 8, pt. 2, 1973 Supp.). Defendant appeals. We remand.\nSection 54-11-20(B) reads as follows:\nB.Except as authorized by the Controlled Substances Act, it is unlawful for any person to intentionally traffic. Any person who violates this subsection is, for the first offense, guilty of a second degree felony and, for the second and subsequent offenses, guilty of a first degree felony.\nThe Controlled Substances Act does not contain a penalty provision for second degree or first degree felonies.\nThe Controlled Substances Act enacted in 1972 is not a part of the Criminal Code enacted in 1963. See, State v. Sawyers, 79 N.M. 557, 445 P.2d 978 (Ct.App.1968).\nSection 40A-29-11, N.M.S.A.1953 (2d Repl.Vol. 6) of the Criminal Code reads- as follows:\nSentencing authority for crimes not contained in Criminal Code. \u2014 A. Whenever a defendant is convicted of a crime under the Constitution, or a statute not contained in the Criminal Code, which specifies the penalty to be imposed on conviction, the court shall have the power to pronounce sentence and imposition of fine in accordance with the provisions prescribed by such statute or constitutional provision for the particular crime of which such person was convicted.\nB. A crime declared to be a felony by the state Constitution or a statute not contained in the Criminal Code, without specification of the sentence or fine to be imposed on conviction, shall constitute a fourth degree felony as prescribed under this code for the purpose of the sentence and shall be so sentenced.\nC. Any other crime for which the sentence to be imposed upon conviction is not specified shall constitute, for the purpose of sentence, a petty misdemean- or. [Emphasis added],\nThis section is clear and unambiguous. There is no room for construction. It must be given effect. State v. Ortiz, 78 N.M. 507, 433 P.2d 92 (Ct.App.1967). Defendant must be sentenced for a fourth degree felony pursuant to \u00a7 40A-29-3(D), N.M.S.A.1953 (2d Repl.Vol. 6) of the Criminal Code. It reads as follows:\nD. Where the defendant has been convicted of a crime constituting a fourth degree felony, the judge shall sentence such person to be imprisoned in the penitentiary for the term of not less than one [1] year nor more than five [5] years, or to the payment of a fine of not more than five thousand dollars ($5,000), or to both such imprisonment and fine in the discretion of the judge.\nThe remaining issue is this: Should we disregard \u00a7 40A-29-11, supra, which is \u201cSentencing authority for crimes not contained in Criminal Code\u201d, and read into the Controlled Substances Act, the penalty provided for a second degree felony in the Criminal Code, being \u00a7 40A-29-3(B), supra? The answer is \u201cNo\u201d.\nThis court cannot usurp the power of the legislature and prescribe penalties in a special criminal statute. The fixing of penalties is exclusively a legislative function. State v. Turnbow, 81 N.M. 254, 466 P.2d 100 (1970); McCutcheon v. Cox, 71 N.M. 274, 377 P.2d 683 (1963). This court must presume that the legislature, in enacting the 1972 Controlled Substances Act knew about the existence of \u00a7 40 A-29-11, supra, of the Criminal Code. State v. Trujillo, 85 N.M. 208, 510 P.2d 1079 (Ct.App.1973).\nThe only way this court could read the penalty provisions of the Criminal Code into the Controlled Substances Act would be to add words onto \u00a7 54 \u2014 11-20(B) to the effect that where the defendant has been convicted of a first or second degree felony, the judge shall sentence such person as provided in \u00a7 40A-29-3(A) and (B), supra. This we cannot do. De Graftenreid v. Strong, 28 N.M. 91, 206 P. 694 (1922); State v. Alexander, 46 N.M. 156, 123 P.2d 724 (1942). \u201cWe may not properly supply legislative omissions, no more so than the legislature can with propriety assume the performance of judicial functions.\u201d Apodaca v. Viramontes, 53 N.M. 514, 524, 212 P.2d 425, 431 (1949). If a change is needed in a statute, the legislature and not the courts is the place to go. Hendricks v. Hendricks, 55 N.M. 51, 226 P.2d 464 (1950).\nThere is no merit to defendant\u2019s remaining point.\nThe sentence is reversed. The trial court is directed to resentence defendant in accordance with \u00a7 40A-29-3(D), supra.\nIt is so ordered.\nHENDLEY, J\u201e concurs.\nLOPEZ, J., dissents.",
        "type": "majority",
        "author": "SUTIN, Judge."
      },
      {
        "text": "LOPEZ, Judge\n(dissenting).\nThe decision of the majority today makes the penalties for repeated trafficking in heroin and possession of eight ounces of marijuana the same. This result is clearly not what the legislature intended. Indeed, the whole legislative scheme of varied penalties depending upon the seriousness of the offense and the dangerousness of the drug has been abrogated. The reason is apparently because the term \u201csecond degree felony\u201d is not defined in the correct volume of our code. It is this type of \u201cjudicial legislation\u201d by technicality which is to be avoided.\nThe major issue involved in this appeal is not whether we should disregard \u00a7 40A-29-11, N.M.S.A.1953 (2d Repl.Vol. 6), but rather what effect should be given to its terms. The statute states:\n\u201cA. Whenever a defendant is convicted of a crime under ... a statute not contained in the Criminal Code, which specifies the penalty to be imposed on conviction, the court shall have the power to pronounce sentence in accordance with the provisions prescribed . . . \u201d [Emphasis added]\nThe majority have concluded that the statute is clear and unambiguous. With this conclusion I disagree.\nThe statute does not indicate the extent of specificity required before a court can sentence under Subsection A. The word \u201cspecify\u201d is subject to more than one possible meaning. It could mean that the fine and sentence must be explicitly set out. It could require only that the language be so specific that men of ordinary intelligence need not guess at its meaning or differ as to its application. See State v. Ferris, 80 N.M. 663, 459 P.2d 462 (Ct.App.1969). In this sense the statute is ambiguous and judicial construction can be employed to clarify it. See State v. Clark, 80 N.M. 340, 455 P.2d 844 (1969).\nSeveral rules of statutory construction are useful in determining which of the two possible meanings applies. The first is that a statute is to be construed to effectuate the legislative intent. State ex rel. Sanchez v. Reese, 79 N.M. 624, 447 P.2d 504 (1968); State v. Ortega, 77 N.M. 312, 422 P.2d 353 (1966). As pointed out, the legislature intended a scheme of graduated penalties. The majority adopt the construction which, in most instances, provides a sentence of from one to five years imprisonment no matter how serious the offense. It is absurd to think that the legislature intended to equate serious offenses like the repeated sale of heroin with others denominated fourth degree felonies. Yet, the majority, in apparently requiring that the sentence and fine be explicitly set out, reach that result.\nCourts are to construe a statute so that no part is rendered surplusage or superfluous. Stang v. Hertz Corp., 81 N.M. 69, 463 P.2d 45 (Ct.App.1969). Yet, what meaning do the words \u201csecond degree\u201d in \u00a7 54 \u2014 11\u201420(B), N.M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp.1973), have after the majority\u2019s decision? We should construe statutes to save them, not to void their provisions.\nThe majority\u2019s decision creates a conflict between the words \u201cfourth degree felony\u201d in \u00a7 40A-29-ll(B), supra, and \u201csecond degree felony\u201d in \u00a7 54-11-20 (B), supra. Courts should construe statutes together when possible. State v. New Mexico State Authority, 76 N.M. 1, 411 P.2d 984 (1966).\nIf the construction urged here is accepted, does \u00a7 54-11-20 (B), supra, \u201c. specif[y] the penalty to be imposed upon conviction?\u201d The majority conclude that to \u201c . . . read into the Controlled Substances Act the penalty provided for a second degree felony . . . ,\u201d would amount to a usurpation of the power of the legislature. My understanding is that our function is precisely to define and clarify the words of legislative enactments. Apparently that was also the view of this Court in State v. Sawyers, 79 N.M. 557, 445 P.2d 978 (Ct.App.1968), where the Criminal Code definition o.f \u201cfelony\u201d was used to interpret language in another criminal statute not found in the Criminal Code.\nSince a reasonable man need not guess at what is meant by a \u201csecond degree felony\u201d but merely turn to \u00a7 40A-29-3(B), N.M.S.A.1953 (2d Repl.Vol. 6), the section of the Controlled Substances Act involved here, \u00a7 54-11-20(B), supra, specifies its own penalty. This being the case, the proper sentencing authority is found in \u00a7 40A-29-11 (A), supra.\nFor the foregoing reasons, I respectfully dissent. I would affirm.",
        "type": "dissent",
        "author": "LOPEZ, Judge"
      }
    ],
    "attorneys": [
      "John C. Maine, Jr., Martin, Maine & Hilton, Albuquerque, for defendant-appellant.",
      "David L. Norvell, Atty. Gen., Jay F. Rosenthal, Sp. Asst. Atty. Gen., Sante Fe, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "520 P.2d 554\nSTATE of New Mexico, Plaintiff-Appellee, v. Anthony HERRERA, Defendant-Appellant.\nNo. 1242.\nCourt of Appeals of New Mexico.\nJan. 23, 1974.\nCertiorari Granted Feb. 15, 1974.\nLopez, J., dissented and filed opinion.\nJohn C. Maine, Jr., Martin, Maine & Hilton, Albuquerque, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Jay F. Rosenthal, Sp. Asst. Atty. Gen., Sante Fe, for plaintiff-appellee."
  },
  "file_name": "0134-01",
  "first_page_order": 164,
  "last_page_order": 167
}