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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 v.                                                                            NO. 30,512

 5 RYAN HARRIS,

 6          Defendant-Appellee.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Reed S. Sheppard, District Judge

 9 Gary K. King, Attorney General
10 Margaret McLean, Assistant Attorney General
11 Santa Fe, NM

12 for Appellant

13 Jacqueline L. Cooper, Chief Public Defender
14 Karl Erich Martell, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellee


17                                 MEMORANDUM OPINION

18 BUSTAMANTE, Judge.
 1        The State appeals the dismissal of a felon in possession charge against

 2 Defendant. The district court dismissed the charge on the ground that Defendant’s

 3 conditional discharge entered in 2006 had not been revoked, and therefore could not

 4 serve as the predicate felony for the current felon in possession charge. On appeal,

 5 the State argues that a conditional discharge is a “conviction” for purposes of

 6 satisfying the definition of the felon in possession statute. Alternatively, the State

 7 argues that the district court erred in dismissing the charge because the conditional

 8 discharge order had been revoked. We affirm based on our case law holding that a

 9 conditional discharge order is not a “conviction,” and the fact that the conditional

10 discharge order in this case was not revoked.

11 DISCUSSION

12        The felon in possession statute defines a “felon” as “a person convicted of a

13 felony offense.” NMSA 1978, § 30-7-16(C)(2) (2001). Prior to 1993, when the

14 conditional discharge option was made available for first-time felons, Defendant’s

15 guilty plea would have been considered a conviction because a conviction was

16 considered a “finding of guilt, even before formal adjudication by the court, much less

17 before sentencing.” State v. Mondragon, 107 N.M. 421, 424, 759 P.2d 1003, 1006

18 (Ct. App. 1988). However, as discussed in State v. Herbstman, 1999-NMCA-014, ¶

19 20, 126 N.M. 683, 974 P.2d 177, the 1993 enactment of the conditional discharge

                                              2
 1 statute carved out an exception to that general rule such that a conditional discharge

 2 order could not serve as a “conviction” unless a particular statute expressly so stated.

 3 Cf. NMSA 1978, § 31-18-17(A) (2003) (stating that for habitual offender

 4 enhancement a conditional discharge is considered a prior felony conviction).

 5 Subsequent case law has reaffirmed this principle. See, e.g., In re Treinen, 2006-

 6 NMSC-013, ¶ 4, 139 N.M. 318, 131 P.3d 1282; State v. Fairbanks, 2004-NMCA-005,

 7 ¶ 8, 134 N.M. 783, 82 P.3d 954.

 8        The State argues that either Defendant’s conditional discharge was revoked by

 9 operation of law or the failure to order it revoked was a ministerial oversight. In this

10 case, a conditional discharge order was entered in October 2006. Consistent with

11 NMSA 1978, Section 31-20-13 (1994), the order was entered without an adjudication

12 of guilt and with a sentencing term of two years and six months. The plea and

13 disposition agreement acknowledged Defendant’s potential incarceration. In June

14 2007, Defendant’s probation was revoked, and he was placed back on probation. In

15 February 2008, Defendant’s probation was revoked again, but this time the district

16 court ordered that Defendant be incarcerated for 182 days. The district court’s order

17 did not state that the conditional discharge was revoked; to the contrary, the box for

18 revoking conditional discharge was unchecked.




                                              3
 1        The State argues that the failure to mark the box was a ministerial oversight.

 2 The transcript of the sentencing hearing does not support the State’s contention. The

 3 parties announced to the district court that they had reached an agreement on the

 4 violation: Defendant would serve six months in jail. The court accepted this

 5 agreement without any discussion concerning the revocation of the conditional

 6 discharge order. In light of the complete absence of any discussion about exercising

 7 the court’s discretion to revoke the conditional discharge, we reject the claim that the

 8 unchecked box was a ministerial oversight.

 9        The State also argues that the conditional discharge order was revoked by

10 operation of law. First, the State maintains that a conditional discharge is a form of

11 a deferred sentence and, once Defendant was incarcerated, the conditional discharge

12 was revoked as a matter of law. The Legislature enacted the conditional discharge

13 statute as an alternative to a deferred sentence, however, in that there is no

14 adjudication of guilt unless the court exercises its discretion to revoke the conditional

15 discharge order under Section 31-20-13(B). See Herbstman, 1999-NMCA-014, ¶ 20.

16 To equate a conditional discharge with a deferred sentence would render the statute

17 meaningless, a point emphasized in Herbstman. Id.

18        The State is correct that the conditional discharge statute contemplates that a

19 defendant will be subject to probation during his sentence. See § 31-20-13(A).


                                               4
 1 However, we are not limited to a consideration of Section 31-20-13(A). The statute

 2 provides the district court with broad sentencing discretion upon a probation violation.

 3 See § 31-20-13(B) (“If the person violates any of the conditions of probation, the court

 4 may enter an adjudication of guilt and proceed as otherwise provided by law.”). It is

 5 a basic rule of statutory construction that the use of the word “may,” as opposed to

 6 “shall,” confers discretion with the court. See State v. Donahoo, 2006-NMCA-147,

 7 ¶ 7, 140 N.M. 788, 149 P.3d 104.

 8        In this case, the record indicates that the district court did not choose to enter

 9 an adjudication of guilt. As we have stated, we are not inclined to speculate that this

10 was an oversight given the lack of any discussion on the matter at the sentencing

11 hearing and the absence of any indication to do so in the court’s order revoking

12 probation. Cf. State v. Lohberger, 2008-NMSC-033, ¶ 22, 144 N.M. 297, 187 P.3d

13 162 (noting that a lack of certainty in court orders should not be at the expense of

14 important rights). Oral comments by a judge may be used to clarify a written ruling

15 by the court, and in this case the judge’s silence reaffirms the written order and its

16 inaction on the revocation issue. See Ledbetter v. Webb, 103 N.M. 597, 604, 711 P.2d

17 874, 881 (1985) (stating that a trial court’s verbal comments can be used to clarify

18 written findings).




                                              5
 1        The State refers us to Vives v. Verzino, 2009-NMCA-083, ¶ 15, 146 N.M. 673,

 2 213 P.3d 823, where we examined a Florida sentencing procedure and concluded that

 3 it was not analogous to a conditional discharge because the defendant had been

 4 sentenced to jail as part of his punishment. We observed that under Section 31-20-

 5 13(A), a defendant is placed on probation. Vives, 2009-NMCA-083, ¶ 15. In the

 6 current case, however, we are guided by the language of Section 31-20-13(B), which

 7 gives a sentencing court broad discretion after probation has been revoked.

 8 Defendant’s plea specifically authorized the district court to impose a period of

 9 incarceration in the event of a probation violation. Therefore, even if Section 30-20-

10 13 does not itself contemplate incarceration, the district court, in its broad sentencing

11 discretion, could conclude that the conditional discharge would not be revoked, but

12 Defendant would nevertheless be punished according to the terms of the plea

13 agreement he had with the State, which permitted incarceration upon a probation

14 violation. See State v. Mares, 119 N.M. 48, 51, 888 P.2d 930, 933 (1994) (observing

15 the sentencing court’s broad discretion to apply the unique terms of a plea agreement,

16 which may deviate from the statutory punishment that would otherwise occur).

17 Finally, the State relies on State v. Handa, 120 N.M. 38, 45-46, 897 P.2d 225, 232-33

18 (Ct. App. 1995), where the defendant had included a conditional discharge as a prior

19 felony in his plea agreement. Handa does not support the State’s argument, because


                                               6
 1 it is an “invit[ed] error” case. We held that the defendant could not complain about

 2 the erroneous inclusion of the conditional discharge because he himself had suggested

 3 it. Id.

 4           We acknowledge that Defendant did not successfully complete the term of his

 5 probation. See Fairbanks, 2004-NMCA-005, ¶ 10 (noting that “the successful

 6 completion of probation under the terms of a conditional discharge results in the

 7 eradication of the guilty plea or verdict and there is no conviction”). However,

 8 Section 31-20-13(B) gives the district court the discretion to revoke or not revoke the

 9 conditional discharge after a finding of non-compliance. In the absence of any oral

10 or written indication that the district court intended to revoke the conditional discharge

11 order, the record in this case supports the view that the conditional discharge order

12 was not revoked. Instead, the court crafted a punishment permitted by the underlying

13 plea agreement.

14 CONCLUSION

15           For the reasons stated above, we affirm the district court’s dismissal of the felon

16 in possession charge.

17           IT IS SO ORDERED.



18
19                                             MICHAEL D. BUSTAMANTE, Judge

                                                  7
1 WE CONCUR:



2
3 MICHAEL E. VIGIL, Judge



4
5 LINDA M. VANZI, Judge




                            8
