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


 2 STATE OF NEW MEXICO,

 3        Plaintiff-Appellee,

 4 v.                                                                        NO. 28,999

 5 FERLANDO BENALLY,

 6        Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 Karen L. Townsend, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Allison H. Jaramillo, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant



16                              MEMORANDUM OPINION

17 CASTILLO, Judge.

18        Defendant appeals from the district court’s ruling that the magistrate judge had

19 jurisdiction to enter its judgment and sentence that continued probation even though
 1 Defendant had served the underlying ninety-day suspended sentence. Our notice

 2 proposed to affirm, and Defendant filed a timely memorandum in opposition pursuant

 3 to a granted extension of time. We remain unpersuaded by Defendant’s arguments

 4 and therefore affirm.

 5        Issue: Defendant continues to argue that the district court erred in continuing

 6 his probation term after he had already been incarcerated for the maximum term

 7 allowed by law. [DS 3]

 8        We first set forth the relevant time frame of events. Following Defendant’s

 9 DWI conviction, on January 31, 2008, the magistrate judge entered a judgment and

10 sentence (case #1), sentencing Defendant to the maximum ninety-day sentence, with

11 sixty days suspended, for a total jail term of thirty days, as well as up to 364 days of

12 supervised probation. [RP 47-48] On February 23, 2008, Defendant was arrested on

13 unrelated charges and was jailed for the new charges, as well as for violating his

14 probation in case #1. [RP 27, 74] After Defendant was jailed for approximately sixty

15 days, the magistrate judge released Defendant with respect to case #1 because after

16 sixty days Defendant had served the ninety-day sentence. [RP 74] Subsequently,

17 after a hearing on Defendant’s probation violation in case #1, at which time Defendant

18 admitted to violating his probation, the magistrate court entered a judgment and

19 sentence under the same cause number as case #1, listing a probation violation and


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 1 continuing Defendant’s previously imposed probation at a higher level of supervision.

 2 [RP 10]

 3        At the outset, we note that Defendant’s 364-day probation period began when

 4 his sentence was imposed on January 31, 2008 [RP 46], and therefore ended on

 5 January 31, 2009. For this reason, Defendant’s appeal of his continued probation

 6 appears moot, as his sentence has now been fully served. See generally Gunaji v.

 7 Macias, 2001-NMSC-028, ¶ 9, 130 N.M. 734, 31 P.3d 1008 (recognizing that a case

 8 is moot when no actual controversy exists and the court cannot grant actual relief).

 9        Mootness notwithstanding, affirmance is nonetheless merited because the

10 probation was statutorily authorized. Defendant’s January 31, 2008, suspended

11 sentence and probation [RP 46] is pursuant to NMSA 1978, Section 66-8-102(E)

12 (2008), which provides that “[a] person under first conviction pursuant to this section

13 shall be punished . . . by imprisonment for not more than ninety days or by a fine of

14 not more than five hundred dollars ($500) or both; provided that if the sentence is

15 suspended in whole or in part or deferred, the period of probation may extend beyond

16 ninety days but shall not exceed one year.” (Emphasis added.) Significantly, Section

17 66-8-102(E) provides that probation may be imposed for up to a year, even though

18 this time period extends beyond the maximum ninety-day sentence or period of

19 suspended sentence. Compare NMSA 1978, § 31-20-5(A) (2003) (providing that


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 1 “[w]hen a person has been convicted of a crime for which a sentence of imprisonment

 2 is authorized and when the magistrate, metropolitan or district court has deferred or

 3 suspended sentence, it shall order the defendant to be placed on probation for all or

 4 some portion of the period of deferment or suspension if the defendant is in need of

 5 supervision”).

 6        In the present case, following Defendant’s probation revocation, the district

 7 court recognized that it could not impose any jail time because Defendant had already

 8 served the underlying ninety-day sentence. In this regard, the district court properly

 9 viewed the June 17, 2008, judgment and sentence not as a separate criminal

10 proceeding to impose a new punishment, but instead as addressing how the remainder

11 of Defendant’s probationary term, as imposed in case #1, would be served. [RP 76]

12 See NMSA 1978, § 31-21-15(B) (1989) (providing that if a probation violation is

13 established, the court may continue the original probation, revoke the probation, and

14 either order a new probation or require the probationer to serve the balance of the

15 sentence imposed or any lesser sentence).

16        Despite the foregoing statutory authority, Defendant argues that the district

17 court lost its authority to impose probation because, as a result of his probation

18 violation, he served the sixty-day suspended portion of his sentence in jail. In effect,

19 Defendant argues that the probation portion of the initial January 31, 2008, sentence


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 1 was no longer valid as a result of the consequences flowing from Defendant’s

 2 probation violation. We disagree. Although Defendant by his actions lost the benefit

 3 of the suspended portion of his sentence, this does not mean that he was no longer

 4 subject to the probation portion of his sentence. See State v. Encinias, 104 N.M. 740,

 5 742, 726 P.2d 1174, 1176 (Ct. App. 1986) (holding that “simply because a court may

 6 lose the authority to incarcerate a probationer upon the expiration of the underlying

 7 term of the suspended sentence” does not render the court’s authority to impose

 8 supervised authority for the statutorily authorized five-year period).

 9         We note further that Defendant’s argument that the court “in effect, imposed

10 a sentence of 454 days” [MIO 5] is incorrect. On January 31, 2008, the court imposed

11 the sentence [RP 46], and at that time the 364 probationary period began to run. [RP

12 48] As such, Defendant’s total sentence did not exceed 364 days, as after he served

13 the sixty-day suspended portion of his sentence, he was only subject to a remaining

14 probation period of 304 days, for a total of a 364-day sentence.

15         Although Encinias does not specifically address Section 66-8-102(E) [MIO 4-

16 5], the statute at issue in Encinias, like the statute in the present case, provided that the

17 supervised probation could exceed the maximum term of incarceration for the offense

18 committed.      In such instance, the Encinias Court held that it was within the

19 legislature’s intent to allow for the period of probation to extend beyond the jail time


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1 served, if appropriate. As explained in Encinias, one of the purposes of probation is

2 to aid in rehabilitation, and thus a defendant may benefit from complying with a

3 supervised term of probation even though the underlying term of incarceration has

4 expired. We see no reason to not extend the holding in Encinias to Defendant in the

5 present case.

6        Based on the foregoing discussion, we affirm.

7        IT IS SO ORDERED.



8                                               ________________________________
9                                               CELIA FOY CASTILLO, Judge

10 WE CONCUR:



11 ________________________________
12 CYNTHIA A. FRY , Chief Judge



13 ________________________________
14 MICHAEL E. VIGIL, Judge




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