 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                    NO. 30,406

10 DAVID HAMILTON,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Charles W. Brown, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17   Hugh W. Dangler, Chief Public Defender
18   Santa Fe, NM
19   Vicki W. Zelle, Assistant Appellate Defender
20   Albuquerque, NM

21 for Appellant



22                                 MEMORANDUM OPINION
 1 CASTILLO, Judge.

 2        Defendant David Hamilton appeals the district court’s order affirming the

 3 metropolitan court’s amended judgment and sentence for driving while under the

 4 influence of intoxicating liquor (DWI). This Court filed a notice of proposed

 5 summary disposition proposing affirmance. Defendant filed a memorandum in

 6 opposition to proposed summary disposition that we have duly considered. We affirm

 7 the district court.

 8 BACKGROUND

 9        Defendant asserts that the metropolitan court’s amended judgment and

10 sentence, entered after he had been incarcerated for 108 days, was an illegal sentence

11 because he had already been incarcerated for longer than the maximum sentence he

12 could have received for first-offense DWI. Because he served the maximum sentence,

13 Defendant argues, the court thereafter had no further sentencing authority.

14        Defendant was arrested for DWI on September 15, 2006, and was originally

15 given a deferred sentence in metropolitan court on May 8, 2007, with supervised

16 probation to expire a year later on May 8, 2008. [RP 33, 83] Defendant filed a notice

17 of appeal in district court on May 23, 2007, but withdrew the appeal about six months

18 later. [RP 7, 63-66] In October 2007, the district court returned the case to the

19 metropolitan court for execution of the judgment and sentence. [RP 12-17] On


                                             2
 1 December 7, 2007, Defendant filed a motion in metropolitan court to amend and

 2 correct his sentence to remove the part of the sentence requiring him to be on

 3 probation, alleging that he had already served 106 days incarceration (later determined

 4 to be 108 days [RP 156, fn 1]), more than the ninety-day maximum possible

 5 incarceration for first-offense DWI.      [RP 18-20]     On February 1, 2008, the

 6 metropolitan court denied Defendant’s motion and issued an amended judgment and

 7 sentence imposing the original sentence and ordering, among other things, that

 8 Defendant serve a period of probation until May 8, 2008, the date it was set to expire

 9 under the terms of the court’s original order deferring sentence. [RP 33, 76] On

10 February 15, 2008, Defendant again appealed to the district court, which stayed

11 execution of the metropolitan court sentence. [RP 80, 82] The district court filed a

12 memorandum opinion and judgment affirming the metropolitan court on March 15,

13 2010. [RP 182-97] This is the order on appeal here.

14 DISCUSSION

15        “We review the legality of a sentence under the de novo standard of review.”

16 State v. Williams, 2006-NMCA-092, ¶ 4, 140 N.M. 194, 141 P.3d 538.

17        Under NMSA 1978, Section 66-8-102(E) (2007) (amended 2010), a first-time

18 DWI offender shall be sentenced as follows:

19        A first conviction pursuant to this section shall be punished,
20        notwithstanding the provisions of Section 31-18-13 NMSA 1978, by

                                              3
 1        imprisonment for not more than ninety days or by a fine of not more than
 2        five hundred dollars ($500), or both; provided that if the sentence is
 3        suspended in whole or in part or deferred, the period of probation may
 4        extend beyond ninety days but shall not exceed one year.


 5 The Motor Vehicle Code also provides:

 6        With respect to this section and notwithstanding any provision of law to
 7        the contrary, if an offender’s sentence was suspended or deferred in
 8        whole or in part and the offender violates any condition of probation, the
 9        court may impose any sentence that the court could have originally
10        imposed and credit shall not be given for time served by the offender on
11        probation.

12 Section 66-8-102(T) (2010).

13        Following his plea of guilty for first-time DWI on May 8, 2007, Defendant was

14 given a deferred sentence with supervised probation for one year. [RP 33] This

15 comports with the quoted portion of Section 66-8-102(E) in that Defendant was given

16 a deferred sentence and the permissible one year of probation. At some point before

17 December 7, 2007, Defendant had been incarcerated for 32 days before his plea and

18 76 days for violation of his terms of release on appeal. [DS 2; RP 47, 57, 182-83] He

19 now argues that having served more than the statutory ninety days, his sentence can

20 no longer be considered deferred and that the remaining probation portion of the year

21 of deferral was no longer enforceable as a result of the consequences flowing from his

22 probation violation. [MIO 16-20] We agree with Defendant only to the extent that

23 the metropolitan court could not impose additional incarceration.

                                              4
 1        A term of probation may extend beyond the maximum term of incarceration

 2 authorized. In State v. Encinias, 104 N.M. 740, 726 P.2d 1174 (Ct. App. 1986), one

 3 of the defendants was sentenced to twenty-four months’ incarceration, with eighteen

 4 months suspended, followed by five years’ probation. This Court held that it was

 5 permissible for the probation term to extend beyond the incarceration term,

 6 notwithstanding the district court’s loss of authority to incarcerate the probationer in

 7 the event of a probation violation. Id. at 742, 726 P.2d at 1176. This Court pointed

 8 out that “[t]he Legislature ha[d] provided that one of the purposes of probation is to

 9 aid in . . . rehabilitation,” and that “[a]ccordingly, a defendant may benefit from

10 complying with a supervised term of probation even where the underlying term of

11 incarceration has expired.” Id.

12        In his memorandum in opposition, Defendant argues that Encinias is

13 distinguishable based on differences between the general statutory sentencing scheme

14 applicable there and the DWI sentencing scheme applicable in the present case. [MIO

15 16-18] Under our interpretation in Encinias of the former general sentencing statute

16 at NMSA 1978, Section 31-20-6(C) (2007), the Legislature had expressly allowed for

17 a period of five years probation, even though that might be longer than the term of

18 incarceration permitted for the particular offense. Encinias, 104 N.M. at 742-43, 726

19 P.2d at 1176-77. The general sentencing statutes also provide that where a sentence


                                              5
 1 is deferred, upon a violation of probation the court may impose any sentence it might

 2 have imposed originally, but credit must be given for time served on probation.

 3 NMSA 1978, § 31-21-15(B) (1989). Under the DWI sentencing statutes, however,

 4 no credit against a term of incarceration may be given for time served on probation.

 5 Section 66-8-102(T). Although Defendant asserts that “[t]his difference is highly

 6 significant in the harmonious application of misdemeanor sentencing laws, and

 7 distinguishes this situation from that encountered in Encinias[,]” we fail to see why

 8 it should make a difference in the factual setting of the present case. [MIO 17]

 9 CONCLUSION

10        We conclude that the principle set forth in Encinias applies in the present

11 circumstances to the one-year period of probation permitted under Section 66-8-

12 102(E). Accordingly, we affirm the district court.

13        IT IS SO ORDERED.


14                                        ___________________________________
15                                        CELIA FOY CASTILLO, Judge
16 WE CONCUR:




17 __________________________________
18 MICHAEL D. BUSTAMANTE, Judge



                                             6
1 __________________________________
2 JONATHAN B. SUTIN, Judge




                                  7
