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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 32,206
5 JOSH BARTLETT,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Angela J. Jewell, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jacqueline L. Cooper, Chief Public Defender
13 Kimberly Chavez Cook, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
1 CASTILLO, Chief Judge.
2 Defendant appeals from the district court’s order revoking his probation,
3 denying his motion to clarify (or limit) the probationary period, and ordering him to
4 serve 301 days in the Metropolitan Detention Center, followed by a new five-year
5 probationary period. Defendant challenges this sentence on grounds that it exceeds
6 his total sentence exposure from the underlying judgment and sentence. Unpersuaded
7 that Defendant demonstrated error, we issued a notice of proposed summary
8 disposition, proposing to affirm. Defendant has filed a memorandum in opposition
9 in response to our notice. We have considered Defendant’s response and remain
10 unpersuaded that Defendant has demonstrated error. We therefore affirm.
11 In his response to our notice, Defendant contends that his original judgment and
12 sentence included too much time on his suspended sentence, because it should have
13 reflected the fact that the district court necessarily ran his armed robbery sentences
14 with firearm enhancements fully or partially concurrently, rather than consecutively,
15 as the district court stated. [MIO 9-14] Defendant reasons as follows. The district
16 court sentenced him to nine years for two counts of armed robbery, both with firearm
17 enhancements. [CR-1999-3910 RP 94 (hereinafter “RP”)] Each conviction for armed
18 robbery with the firearm enhancement carries a sentence of ten years. See NMSA
19 1978, § 31-18-15(A)(6) (2007) (stating that a second degree felony carries a sentence
2
1 of nine years); NMSA 1978, § 31-18-16(A) (1993) (stating that the use of a firearm
2 in the commission of noncapital felony carries a mandatory one-year enhancement to
3 the basic sentence to be served first, and it shall not be suspended or deferred).
4 Defendant maintains that sentences may not be fragmented and that therefore each
5 firearm enhancement must be served with each basic sentence for armed robbery.
6 [MIO 4-9] Defendant states that because the district court sentenced him to serve nine
7 years in prison for both armed robbery convictions with the firearm enhancements,
8 and because the firearm enhancement must be served first, must not be suspended, and
9 must be followed by the basic sentence, the district court’s judgment and sentence
10 ordering that the sentences be served consecutively is incorrect; the district court
11 could only order that the convictions be served, at least partially, concurrently. [MIO
12 5-9; RP 94] As a result, Defendant argues that his suspended sentence was too long,
13 because it incorporated the armed robbery sentence that was necessarily ordered to be
14 served concurrently to the other one. [MIO 9-16]
15 We do not agree with Defendant’s premise that the original judgment and
16 sentence can only be reconciled with Section 31-18-16(A) by running the two
17 enhanced armed robbery sentences at least partially, if not wholly, concurrently.
18 [MIO 6-7] Even assuming that Defendant is correct that the firearm enhancement
19 must be served immediately before the basic sentence, which the case law Defendant
3
1 cites does not squarely state, we see no reason why the district court would be
2 prohibited from suspending part or all of the basic sentences for armed robbery. The
3 Legislature has stated clearly that district courts have the authority and discretion to
4 suspend all or part of the execution of a sentence unless the defendant has been
5 convicted of a capital felony or a first degree felony. See NMSA 1978, § 31-20-3(B)
6 (1985). In addition, this Court has viewed the firearm enhancement statute and stated
7 the following: “the basic sentence in the firearm enhancement section can be
8 suspended or deferred. We see no policy reason or glean any legislative intent to
9 prohibit the altering of the basic sentence.” State v. Russell, 94 N.M. 544, 545, 612
10 P.2d 1355, 1356 (Ct. App. 1980).
11 Based on these principles, the district court acted well within its discretion by
12 ordering that Defendant serve the mandatory firearm enhancements, and either
13 suspending part of both basic sentences or suspending all of one basic sentence and
14 two years of the other basic sentence, and ordering that the sentences be served
15 consecutively. We see nothing in the statutes or Defendant’s argument that would
16 prohibit this result, and it is consistent with the restrictions of the firearm enhancement
17 statute, Section 31-18-16(A), and the court’s discretion to suspend all or part of
18 sentence for a noncapital, second degree felony under Section 31-20-3(B).
19 For these reasons, we affirm the district court’s order.
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1 IT IS SO ORDERED.
2 __________________________________
3 CELIA FOY CASTILLO, Chief Judge
4 WE CONCUR:
5 __________________________________
6 JAMES J. WECHSLER, Judge
7 __________________________________
8 TIMOTHY L. GARCIA, Judge
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