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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. A-1-CA-37375

 5 MICHAEL RODRIGUEZ,

 6          Defendant-Appellee.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Douglas R. Driggers, District Judge

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

11 for Appellant

12 Bennett J. Baur, Chief Public Defender
13 Will O’Connell, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellee

16                                 MEMORANDUM OPINION

17 VANZI, Chief Judge.

18   {1}    The State appeals from a district court order revoking Defendant’s probation

19 and re-sentencing him. We issued a calendar notice proposing to reverse. Defendant
 1 has responded with a memorandum in opposition. We reverse and remand for

 2 resentencing.

 3   {2}   In this case, Defendant plead guilty in 2015 to trafficking and distribution. [RP

 4 40] The plea contains an admission of identity to two prior felonies. [RP 40] The State

 5 only sought to enhance his sentence with one of the two prior felonies, but the plea

 6 informed Defendant that he could be subject to the use of both priors upon revocation

 7 of his probation. [RP 41, 42] Pursuant to the plea, only a single prior was used in the

 8 judgment and sentence, resulting in each felony being enhanced by one year. [RP 51]

 9 Defendant’s probation was thereafter revoked, and the State sought a four-year

10 enhancement for each felony, based on the use of both priors, with credit for any time

11 served under the additional enhancement. See NMSA 1978, § 31-18-17(B) (2003)

12 (mandating a four-year enhancement where the defendant has two priors). The district

13 court ruled that the State had “used up” the first felony in the first sentence, and the

14 use of a second prior at re-sentencing would only tack on an additional year a piece

15 to the enhancements.

16   {3}   In State v. Freed, 1996-NMCA-044, 121 N.M. 569, 915 P.2d 325, this Court

17 was presented with the identical issue that we have here. We concluded that the

18 State’s use of only a single prior felony in the original sentence did not preclude it

19 from using that same prior felony for purposes of seeking a greater enhancement in



                                               2
 1 the second sentence. Id. ¶ 7. We noted that the second judgment supersedes the

 2 original judgment, and therefore all prior felonies charged by the state control the

 3 period of enhancement. Id. There, as here, the state could use both the single felony

 4 used in the original sentence, and the second felony used after revocation, resulting

 5 in a four-year enhancement, subject of course to any credit that may apply. Id. ¶ 8.

 6   {4}   In his memorandum in opposition, Defendant argues that we should depart from

 7 Freed and the New Mexico Supreme Court precedent cited therein, because double

 8 jeopardy law has evolved since Freed was decided. However, as observed in Freed

 9 “the question of whether multiple use of one prior act is permissible [for double

10 jeopardy purposes] in a given situation is generally a question of legislative intent.”

11 Id. ¶ 8.There is no statutory change that indicates that the legislative intent has

12 changed on this issue. We therefore decline to revisit Freed.

13   {5}   For the reasons set forth above, we reverse and remand.

14   {6}   IT IS SO ORDERED.


15
16                                         LINDA M. VANZI, Chief Judge

17 WE CONCUR:


18
19 M. MONICA ZAMORA, Judge



                                              3
1
2 J. MILES HANISEE, Judge




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