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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellant,
4 vs. No. 31,894
5 PENNY STRAYER,
6 Defendant-Appellee.
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 Eleanor Brogan, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 GARCIA, Judge.
1 The State appeals a sentence on a probation violation in which the district court
2 suspended an habitual offender sentence. In our notice, we proposed to reverse the
3 district court’s suspension of the habitual offender sentence. Defendant has timely
4 responded. We have considered her arguments and not being persuaded, we reverse.
5 In our notice, we recognized that a district court is authorized to suspend or
6 defer an habitual offender sentence upon making “a specific finding that the prior
7 felony conviction and the instant felony conviction are both for nonviolent felony
8 offenses and that justice will not be served by imposing a mandatory sentence of
9 imprisonment and that there are substantial and compelling reasons, stated on the
10 record, for departing from the sentence.” NMSA 1978, § 31-18-17(A) (2003). We
11 proposed reversal, however, because the district court’s finding was insufficient to
12 satisfy the statute, which requires a showing of a substantial and compelling reason
13 to depart from the sentence. The State’s docketing statement indicated that the district
14 court had orally ruled that Defendant was an addict, which was identified as the
15 substantial and compelling reason to depart from the habitual sentence. Defendant’s
16 memorandum in opposition does not dispute that ruling.
17 Instead, Defendant argues that she made a record of compelling reasons to
18 depart from the mandatory habitual sentence. We recognize that arguments were
19 made to the district court indicating that Defendant would not be able to receive
2
1 appropriate treatment if she was incarcerated because the programs had waiting lists
2 and her sentence was not sufficiently long to get her in to those programs. Arguments
3 were made that there were programs available in the community that she could take
4 advantage of immediately. Thus, Defendant argues, the district court’s compelling
5 reason for departing from the habitual sentence was not simply that she was an addict,
6 but also that she could not receive treatment for her addiction while in prison.
7 That is not, however, clear from the district court’s ruling. It appears from the
8 district court’s ruling that it suspended the habitual sentencing simply because
9 Defendant was an addict. By itself, that is simply not a compelling reason. We
10 recognize that there may be circumstances relating to a particular defendant’s
11 addiction that might make it a compelling reason under the statute to suspend an
12 habitual offender sentence. However, there is nothing in the specific finding of the
13 district court here regarding why this defendant’s addiction compels a departure from
14 an habitual offender sentence.
15 In light of the statute’s requirement of a specific finding to support suspension
16 of an habitual offender sentence, we conclude that more was required here than a
17 statement that Defendant was an addict, which was substantial and compelling. As
18 nothing more was included in the district court’s ruling, for the reasons stated herein
19 and in the notice of proposed disposition, we reverse and remand for resentencing.
3
1 IT IS SO ORDERED.
2
3 TIMOTHY L. GARCIA, Judge
4 WE CONCUR:
5
6 CYNTHIA A. FRY Judge
7
8 J. MILES HANISEE, Judge
4