(dissenting).
{22} I respectfully dissent. I agree with Judge Wechsler, writing for the Court of Appeals, that the Habitual Offender Act, NMSA 1978, Section 31-18-17(D) (2003), (the Act) does not include as an enhancement felony a conviction classified as a misdemean- or in another state even if that conviction would have been classified as a felony in New Mexico. State v. Moya, 2006-NMCA-103, ¶ 1, 140 N.M. 275, 142 P.3d 43.
{23} The Act states that “prior felony conviction” means:
(1) a conviction, when less than ten years have passed prior to the instant felony conviction since the person completed serving his sentence or period of probation or parole for the prior felony, whichever is later, for a prior felony committed within New Mexico whether within the Criminal Code or not, but not including a conviction for a felony pursuant to the provisions of Section 66-8-102 NMSA 1978; or
(2) a prior felony, when less than ten years have passed prior to the instant felony conviction since the person completed serving his sentence or period of probation or parole for the prior felony, whichever is later, for which the person was convicted other than an offense triable by court martial if:
(a) the conviction was rendered by a court of another state, the United States, a territory of the United States or the commonwealth of Puerto Rico;
(b) the offense was punishable, at the time of conviction, by death or maximum term of imprisonment of more than one year; or
(c) the offense would have been classified as a felony in this state at the time of conviction.
Section 31-18-17(D) (emphasis added). The term “felony” pervades the text of Section 31-18-17(D), and I find this helpful in reaching my conclusion.
{24} I think, as did the Court of Appeals, that Section 31-18-17(D) mandates that a sentence enhancement may only be premised on a felony conviction. Moya, 2006-NMCA-103, ¶ 5-6, 140 N.M. 275, 142 P.3d 43. Section 31-18-17(D)(1), discussing prior convictions in New Mexico that may be used for the purposes of sentence enhancement, requires those convictions to be felonies. Subsections (a), (b), and (c) modify Section 31-18-17(D)(2), which clearly states that the conviction must be a felony. In fact, Section (D)(2) uses the term “prior felony” twice. This is an indication of the Legislature’s intent to allow sentence enhancements based only on prior felony convictions, not misdemeanor convictions.
{25} In State v. Harris, the Court of Appeals held the semicolon at the end of Section 31-18-17(D)(2)(a) meant that its requirement of a felony conviction applied to both of the requirements of Subsections (b) and (c). 101 N.M. 12, 19, 677 P.2d 625, 632 (Ct.App.1984). The court also held that the Legislature’s use of “or” between Subsections (b) and (c) meant that either a punishment of death or a maximum term of at least a one-year imprisonment or the fact the offense would have been classified as a felony in New Mexico was sufficient to trigger a sentence enhancement if the requirement of Subsection (a) was met. Id. As the Court of Appeals noted in Moya, Subsection (a) and either Subsection (b) or (c) must be met. Moya, 2006-NMCA-103, ¶ 6, 140 N.M. 275, 142 P.3d 43. Section (D)(2) explicitly requires the prior conviction to be a felony conviction. The court held that the terms “conviction” and “offense” in Subsections (b) and (e) refer to “prior felony” in Subsection (D)(2). Id. Thus, for the purposes of the Act, the requirement of Section (D)(2) must be met: the prior conviction must have been classified as a felony.
{26} Further, our published opinions from the Court of Appeals seem consistent with its holding in Moya applying Section 31-18-17(D)(2). See State v. Sandoval, 2004-NMCA-046, 135 N.M. 420, 89 P.3d 92; State v. Elliott, 2001-NMCA-108, 131 N.M. 390, 37 P.3d 107; State v. Smith, 2000-NMCA-101, 129 N.M. 738, 13 P.3d 470; State v. Edmondson, 112 N.M. 654, 818 P.2d 855 (Ct.App.1991); Harris, 101 N.M. 12, 677 P.2d 625. While these cases did not expressly deal with the issue before us today, they all dealt with convictions that were classified as felonies in the foreign jurisdiction, and the language of these cases indicates that the Court of Appeals has been consistent in requiring that the foreign conviction be a felony conviction. See Edmondson, 112 N.M. at 656, 818 P.2d at 857 (“There is no dispute that a valid judgment of a conviction for a felony punishable by imprisonment of more than one year was entered against defendant. ... That is all that is necessary under our statute.”) (emphasis added); Harris, 101 N.M. at 19, 677 P.2d at 632 (“The statute clearly requires the prior conviction to have been a conviction of a felony. ...”) (emphasis added). I think this consistency deserves our deference.
{27} I agree with the Court of Appeals’ analysis that:
Our legislature did not intend the legislature of another jurisdiction to control the Habitual Offender Act. It designed the consistency of the statute, not as the State argues, but by making a felony of another state applicable only if it is the equivalent of a New Mexico felony at the time of conviction in the other state, either because of its punishment or of its classification as a felony in New Mexico.... [T]he plain statutory language of the Habitual Offender Act reflects the legislative intent that only prior felony convictions be used for enhancement.
Moya, 2006-NMCA-103, ¶7, 140 N.M. 275, 142 P.3d 43. The State contends the use of the word “offense” in Subsection (D)(2)(c) clearly indicates a legislative intent to permit the use of any offense, irrespective of the punishment for or the nomenclature used in the foreign jurisdiction if the offense would have been classified as a felony in New Mexico. The majority opinion reasons the Legislature did not intend for the Act to be as limited as the Court of Appeals held. Maj. Op. ¶¶ 16-17. I believe, however, that there is sufficient support within the text of the statute and the Court of Appeals’ ease law that the Legislature intended to limit the Act’s application to out-of-jurisdiction convictions.
{28} I would affirm the Court of Appeals and conclude that the Act does not include a conviction from another jurisdiction that is classified as a misdemeanor even if that conviction would have been classified as a felony conviction in New Mexico for the purposes of sentence enhancement. My colleagues being of a different view, I respectfully dissent.