Annotated Statutes of New Mexico (2023)
Chapter 31 Criminal Procedure (Arts. 1 — 30)
Article 18 Criminal Sentencing (§§ 31-18-1 — 31-18-26)
31-18-16. Use, brandishing or discharge of firearm; alteration of basic sentence; suspension and deferral limited.
A. When a separate finding of fact by the court or jury shows that a firearm was used in relation to a drug transaction or during the commission of aggravated burglary pursuant to Section 30-16-4 NMSA 1978 or a serious violent offense, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 shall be increased by one year, except that when the offender is a serious youthful offender or a youthful offender who received an adult sentence, the sentence imposed by this subsection may be increased by one year.
B. When a separate finding of fact by the court or jury shows that a firearm was brandished in the commission of a noncapital felony, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 shall be increased by three years, except that when the offender is a serious youthful offender or a youthful offender that received an adult sentence, the sentence imposed by this subsection may be increased by one year.
C. When a separate finding of fact by the court or jury shows that a firearm was discharged in the commission of a noncapital felony, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 shall be increased by five years, except that when the offender is a serious youthful offender or a youthful offender who received an adult sentence, the sentence imposed by this subsection may be increased by three years.
D. For a second or subsequent offense, when a separate finding of fact by the court or jury shows that a firearm was used, brandished, or discharged in relation to a drug transaction or during the commission of aggravated burglary pursuant to Section 30-16-4 NMSA 1978 or a serious violent offense, the sentence shall be increased by five years, except that when the offender is a serious youthful offender or a youthful offender, the sentence imposed by this section may be increased by three years.
E. If the case is tried before a jury and if a prima facie case has been established showing that a firearm was used, brandished or discharged in relation to a drug transaction or during the commission of aggravated burglary pursuant to Section 30-16-4 NMSA 1978 or a serious violent offense, the court shall submit the issue to the jury by special interrogatory. If the case is tried by the court, the court shall decide the issue and shall make a separate finding of fact thereon.
F. When a separate finding of fact by the court or jury shows that a firearm was used, brandished or discharged in relation to a drug transaction or during the commission of aggravated burglary pursuant to Section 30-16-4 NMSA 1978 or a serious violent offense, the firearm is subject to seizure and forfeiture as an instrumentality pursuant to the provisions of the Forfeiture Act [Chapter 31, Article 27 NMSA 1978].
G. As used in this section:
(1) “brandished” means displaying or making a firearm known to another person while the firearm is present on the person of the offending party with intent to intimidate or injure a person;
(2) “in relation to a drug transaction” means participating or attempting to participate in the trafficking of a controlled substance pursuant to Section 30-31-20 NMSA 1978, distribution of a controlled substance to a minor pursuant to Section 30-31-21 NMSA 1978 or distribution of a controlled or counterfeit substance pursuant to Section 30-31-22 NMSA 1978 as a seller, purported seller or as an accomplice; and
(3) “serious violent offense” means an offense enumerated in Subparagraphs (a) through (n) of Paragraph (4) of Subsection L of Section 33-2-34 NMSA 1978.
PREVIOUS VERSION:
Annotated Statutes of New Mexico
Chapter 31 Criminal Procedure (Arts. 1 — 30)
Article 18 Criminal Sentencing (§§ 31-18-1 — 31-18-26)
Effective May 18, 2022 (re-applied mere “use or discharge” as conditions):
31-18-16. Use, brandishing or discharge of firearm; alteration of basic sentence; suspension and deferral limited.
A. When a separate finding of fact by the court or jury shows that a firearm was used in relation to a drug transaction or during the commission of aggravated burglary pursuant to Section 30-16-4 NMSA 1978 or a serious violent offense, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 shall be increased by one year, except that when the offender is a serious youthful offender or a youthful offender who received an adult sentence, the sentence imposed by this subsection may be increased by one year.
B. When a separate finding of fact by the court or jury shows that a firearm was brandished in the commission of a noncapital felony, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 shall be increased by three years, except that when the offender is a serious youthful offender or a youthful offender that received an adult sentence, the sentence imposed by this subsection may be increased by one year.
C. When a separate finding of fact by the court or jury shows that a firearm was discharged in the commission of a noncapital felony, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 shall be increased by five years, except that when the offender is a serious youthful offender or a youthful offender who received an adult sentence, the sentence imposed by this subsection may be increased by three years.
D. For a second or subsequent offense, when a separate finding of fact by the court or jury shows that a firearm was used, brandished, or discharged in relation to a drug transaction or during the commission of aggravated burglary pursuant to Section 30-16-4 NMSA 1978 or a serious violent offense, the sentence shall be increased by five years, except that when the offender is a serious youthful offender or a youthful offender, the sentence imposed by this section may be increased by three years.
E. If the case is tried before a jury and if a prima facie case has been established showing that a firearm was used, brandished or discharged in relation to a drug transaction or during the commission of aggravated burglary pursuant to Section 30-16-4 NMSA 1978 or a serious violent offense, the court shall submit the issue to the jury by special interrogatory. If the case is tried by the court, the court shall decide the issue and shall make a separate finding of fact thereon.
F. When a separate finding of fact by the court or jury shows that a firearm was used, brandished or discharged in relation to a drug transaction or during the commission of aggravated burglary pursuant to Section 30-16-4 NMSA 1978 or a serious violent offense, the firearm is subject to seizure and forfeiture as an instrumentality pursuant to the provisions of the Forfeiture Act [Chapter 31, Article 27 NMSA 1978].
G. As used in this section:
(1) “brandished” means displaying or making a firearm known to another person while the firearm is present on the person of the offending party with intent to intimidate or injure a person;
(2) “in relation to a drug transaction” means participating or attempting to participate in the trafficking of a controlled substance pursuant to Section 30-31-20 NMSA 1978, distribution of a controlled substance to a minor pursuant to Section 30-31-21 NMSA 1978 or distribution of a controlled or counterfeit substance pursuant to Section 30-31-22 NMSA 1978 as a seller, purported seller or as an accomplice; and
(3) “serious violent offense” means an offense enumerated in Subparagraphs (a) through (n) of Paragraph (4) of Subsection L of Section 33-2-34 NMSA 1978.
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PREVIOUS VERSION:
Annotated Statutes of New Mexico
Chapter 31 Criminal Procedure (Arts. 1 — 30)
Article 18 Criminal Sentencing (§§ 31-18-1 — 31-18-26)
Effective July 1, 2020, until May 18, 2022 (became specific to brandishing, increased sentencing enhancement from 1 to 5 years):
31-18-16 – Brandishing of firearm; alteration of basic sentence; suspension and deferral limited.
A. When a separate finding of fact by the court or jury shows that a firearm was brandished in the commission of a noncapital felony, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 shall be increased by three years, except that when the offender is a serious youthful offender or a youthful offender, the sentence imposed by this subsection may be increased by one year.
B. For a second or subsequent noncapital felony in which a firearm is brandished, the basic sentence of imprisonment prescribed in Section 31-18-15 NMSA 1978 shall be increased by five years, except that when the offender is a serious youthful offender or a youthful offender, the sentence imposed by this subsection may be increased by three years.
C. If the case is tried before a jury and if a prima facie case has been established showing that a firearm was brandished in the commission of the offense, the court shall submit the issue to the jury by special interrogatory. If the case is tried by the court and if a prima facie case has been established showing that a firearm was brandished in the commission of the offense, the court shall decide the issue and shall make a separate finding of fact thereon.
D. As used in this section, “brandished” means displaying or making a firearm known to another person while the firearm is present on the person of the offending party with intent to intimidate or injure a person.
_____________________________________________________
PREVIOUS VERSION:
Annotated Statutes of New Mexico
Chapter 31 Criminal Procedure (Arts. 1 — 30)
Article 18 Criminal Sentencing (§§ 31-18-1 — 31-18-26)
Effective July 1, 1993 until July 1, 2020: (included “use or discharge” as conditions triggering sentencing enhancement)
31-18-16. Use, brandishing or discharge of firearm; alteration of basic sentence; suspension and deferral limited.
A. When a separate finding of fact by the court or jury shows that a firearm was used in relation to a drug transaction or during the commission of aggravated burglary pursuant to Section 30-16-4 NMSA 1978 or a serious violent offense, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 shall be increased by one year, except that when the offender is a serious youthful offender or a youthful offender who received an adult sentence, the sentence imposed by this subsection may be increased by one year.
B. When a separate finding of fact by the court or jury shows that a firearm was brandished in the commission of a noncapital felony, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 shall be increased by three years, except that when the offender is a serious youthful offender or a youthful offender that received an adult sentence, the sentence imposed by this subsection may be increased by one year.
C. When a separate finding of fact by the court or jury shows that a firearm was discharged in the commission of a noncapital felony, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 shall be increased by five years, except that when the offender is a serious youthful offender or a youthful offender who received an adult sentence, the sentence imposed by this subsection may be increased by three years.
D. For a second or subsequent offense, when a separate finding of fact by the court or jury shows that a firearm was used, brandished, or discharged in relation to a drug transaction or during the commission of aggravated burglary pursuant to Section 30-16-4 NMSA 1978 or a serious violent offense, the sentence shall be increased by five years, except that when the offender is a serious youthful offender or a youthful offender, the sentence imposed by this section may be increased by three years.
E. If the case is tried before a jury and if a prima facie case has been established showing that a firearm was used, brandished or discharged in relation to a drug transaction or during the commission of aggravated burglary pursuant to Section 30-16-4 NMSA 1978 or a serious violent offense, the court shall submit the issue to the jury by special interrogatory. If the case is tried by the court, the court shall decide the issue and shall make a separate finding of fact thereon.
F. When a separate finding of fact by the court or jury shows that a firearm was used, brandished or discharged in relation to a drug transaction or during the commission of aggravated burglary pursuant to Section 30-16-4 NMSA 1978 or a serious violent offense, the firearm is subject to seizure and forfeiture as an instrumentality pursuant to the provisions of the Forfeiture Act [Chapter 31, Article 27 NMSA 1978].
G. As used in this section:
(1) “brandished” means displaying or making a firearm known to another person while the firearm is present on the person of the offending party with intent to intimidate or injure a person;
(2) “in relation to a drug transaction” means participating or attempting to participate in the trafficking of a controlled substance pursuant to Section 30-31-20 NMSA 1978, distribution of a controlled substance to a minor pursuant to Section 30-31-21 NMSA 1978 or distribution of a controlled or counterfeit substance pursuant to Section 30-31-22 NMSA 1978 as a seller, purported seller or as an accomplice; and
(3) “serious violent offense” means an offense enumerated in Subparagraphs (a) through (n) of Paragraph (4) of Subsection L of Section 33-2-34 NMSA 1978.
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