STATE V. FLORES, 1968-NMSC-128, 79 N.M.
384, 444 P.2d 295 (S. Ct. 1968)
STATE of New Mexico, Plaintiff-Appellee,
vs.
Alfredo FLORES, Defendant-Appellant
SUPREME COURT OF NEW MEXICO
1968-NMSC-128, 79 N.M. 384, 444 P.2d 295
APPEAL FROM THE DISTRICT COURT OF
GUADALUPE COUNTY, ANGEL, Judge
Leon Karelitz, Las Vegas, for appellant.
Boston E. Witt, Atty. Gen., Gary O'Dowd,
Asst. Atty. Gen., Santa Fe, for appellee.
Spiess, Chief Judge, Court of Appeals.
Chavez, C. J., and Carmody, J., concur.
{1} Following trial by jury
and conviction for unlawful possession and sale of narcotic drugs in violation
of § 54-7-14, N.M.S.A.1953, defendant was placed on probation for five years
and imposition of sentence was deferred. Some twenty-one days later after a
hearing which determined that defendant had violated the terms and conditions
of his probation the court entered judgment sentencing him to a term of two to
ten years in the Penitentiary of New Mexico.
{2} On July 28, 1966,
defendant filed a motion under Rule 93, § 21-1-1(93), N.M.S.A.1953, seeking a
vacation of judgment and sentence upon the grounds (1) that the maximum
sentence which could be imposed was two to five years, and (2) that defendant
was entitled to credit on the sentence imposed for the twenty-one days served
on probation.
{3} By order entered June 29,
1967, the trial court denied defendant's motion. Timely notice of appeal was
thereafter filed.
{4} The first ground asserted
by the motion in the trial court is reasserted here in support of defendant's
claim of error in the denial of his motion, the second ground asserted in the
motion appears to have been granted by the trial court.
{5} We find no merit to
defendant's claim that the maximum sentence which could be imposed was two to
five years.
{6} The penalty for
conviction of a first offense under § 54-7-14, supra, is prescribed by §
54-7-15, N.M.S.A.1953, as follows:
"Any person violating the foregoing sections
[54-7-13, 54-7-14] shall, upon conviction thereof, be punished as follows:
A. For the first offense, upon conviction, he shall be
fined not more than two thousand dollars ($ 2,000) and imprisoned not less than
two [2] years nor more than ten [10] years."
{7} We further note that §
41-17-28.1, subd. B, N.M.S.A.1953, specifically provides "* * * If
imposition of sentence was deferred, the court may impose any sentence which
might originally have been imposed. * * *" It is clear that the sentence
of two to ten years imprisonment might originally have been imposed.
{8} The order denying the
motion should be and hereby is affirmed.