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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                     NO. 34,850

 5 NATHAN COPAGE,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
 8 Mary Marlowe Sommer, District Judge


 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender
13 Steven J. Forsberg, Assistant Public Defender
14 Albuquerque, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 WECHSLER, Judge.
 1   {1}   Defendant appeals from a district court judgment revoking his conditional

 2 discharge and placing him on probation. We issued a second calendar notice

 3 proposing to affirm. Defendant has responded with a memorandum in opposition and

 4 a motion to amend the docketing statement. For the reasons discussed below, the

 5 motion is denied and the judgment is affirmed.

 6 MOTION TO AMEND

 7   {2}   Defendant has filed a motion to amend the docketing statement to add a new

 8 issue. [MIO I] In cases assigned to the summary calendar, this Court will grant a

 9 motion to amend the docketing statement to include additional issues if the motion (1)

10 is timely, (2) states all facts material to a consideration of the new issues sought to be

11 raised, (3) explains how the issues were properly preserved or why they may be raised

12 for the first time on appeal, (4) demonstrates just cause by explaining why the issues

13 were not originally raised in the docketing statement, and (5) complies in other

14 respects with the appellate rules. See State v. Rael, 1983-NMCA-081, ¶ 15, 100 N.M.

15 193, 668 P.2d 309. This Court will deny motions to amend that raise issues that are

16 not viable, even if they allege fundamental or jurisdictional error. See State v. Moore,

17 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91, overruled on other grounds by

18 State v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d 730.



                                               2
 1   {3}   Here, Defendant also has filed a motion to amend the docketing statement.

 2 Defendant’s description of the issue is merely a re-statement of the issue that has

 3 already been raised. [MIO 2] He also goes on to argue that his probation period

 4 violated due process and double jeopardy and amounted to cruel and unusual

 5 punishment. [MIO 3] The due process and double jeopardy arguments are predicated

 6 on the alleged lack of authority to impose the sentence. We also do not believe that

 7 a statutorily-authorized term of probation constitutes cruel and unusual punishment.

 8 See State v. Ira, 2002-NMCA-037, ¶ 18, 132 N.M. 8, 43 P.3d 359 (noting that cruel

 9 and unusual sentence must be so disproportionate to crime that it shocks the

10 conscience). Accordingly, we conclude that the motion to amend is not viable.

11 VALIDITY OF PROBATION

12   {4}   Defendant continues to claim that the district court lacked authority to place

13 him on probation. [MIO 1] The district court issued a conditional discharge order in

14 May 2013 pursuant to a plea agreement wherein Defendant pled to two fourth degree

15 felonies, to be served concurrently, for a potential term of imprisonment of eighteen

16 months. [RP 57, 62] Defendant was given a suspended sentence of eighteen months

17 and placed on probation for a period of five years. [RP 57, 62] In August 2014, the

18 district court revoked the conditional discharge, found Defendant guilty of the

19 underlying crimes, and suspended his sentence and placed him on probation. [RP 118]


                                              3
 1 Defendant does not dispute that when he was re-sentenced he was properly credited

 2 for the period he was on probation. With respect to the authority to impose probation

 3 beyond the term of the basic sentence, the conditional discharge statute, NMSA 1978,

 4 § 31-20-13(A) (1994), authorizes the imposition of probation, which may be up to five

 5 years, as happened in this case. [RP 62] See NMSA 1978, § 31-20-5(A) (2003); see

 6 also State v. Encinias, 1986-NMCA-049, ¶ 13, 104 N.M. 740, 726 P.2d 1174

 7 (concluding that the district court has discretion to award up to five years of probation

 8 and that this probation period is not limited to the potential term of incarceration).

 9 Defendant’s reliance on State v. Nolan, 1979-NMCA-116, ¶¶ 20-21, 93 N.M. 472, 601

10 P.2d 442, is misplaced. That case did not involve a conditional discharge order.

11 Instead, in Nolan the defendant was sentenced to be incarcerated for the full term,

12 with no suspension or deferral. Id. The suspension or deferral was deemed a

13 prerequisite for any additional probationary term. Here, Section 31-20-13(A)

14 expressly authorized the term of probation ordered by the district court. [RP 62]

15   {5}   For the reasons set forth above, we affirm.

16   {6}   IT IS SO ORDERED.


17                                                 ________________________________
18                                                 JAMES J. WECHSLER, Judge




                                               4
1 WE CONCUR:


2 ________________________________
3 LINDA M. VANZI, Chief Judge


4 ________________________________
5 TIMOTHY L. GARCIA, Judge




                                     5
