 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
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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. 29,293

10 REGINALD BENALLY,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Carl J. Butkus, 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 Public Defender
20   Albuquerque, NM

21 for Appellant


22                                 MEMORANDUM OPINION

23 VIGIL, Judge.
 1        Defendant appeals the decision by the district court in this case. The district

 2 court affirmed in part, and reversed in part the sentence imposed by the metropolitan

 3 judge for Defendant’s DWI and driving without a valid license convictions. We

 4 proposed to affirm the district court decision in a calendar notice, and we have

 5 received a response from Defendant. After due consideration of the arguments made

 6 by Defendant, we affirm.

 7        Defendant pled guilty to the charges brought against him, after which his case

 8 was transferred to the drug court program. [RP 63-67] While in the program,

 9 Defendant tested positive for alcohol and missed meetings. As a result, Defendant

10 was sanctioned three times, and then asked to “write something” to convince the judge

11 that he should remain in the drug court program. [RP 116] Defendant asked the court

12 what his sentence would be if he “revoked himself” from the drug court program.

13 [MIO 2-3] The metropolitan judge informed Defendant that he would receive a

14 sentence of “364 plus 90, plus the fines and fees.” [RP 116] Defendant requested that

15 he be removed from the drug court program and receive his sentence. [Id.] The

16 request was granted, and Defendant received “364 days straight jail,” for DWI, and

17 “90 days straight jail” for driving without a valid license. [Id.] Defendant was given

18 pre-sentence confinement credit of 191 days. [Id.] The metropolitan court order

19 states that the court would not reconsider the sentence “unless Defendant presents a

                                             2
 1 plan for a long-term inpatient treatment program.” [RP 79] Finally, the court order

 2 states that fines and fees shall be converted to jail time. [Id.]

 3        On appeal to the district court, the court found that it was error for the

 4 metropolitan judge to convert fines and fees to jail time and reversed that portion of

 5 Defendant’s sentence. Defendant does not challenge that portion of the district court

 6 decision. However, with respect to the imposition of “straight time,” Defendant

 7 continues to claim that the district court acted beyond its authority.

 8        In our calendar notice, we relied on State v. Wyman, 2008-NMCA-113, ¶¶ 1,

 9 7, 144 N.M. 701, 191 P.3d 559, cert. granted, 2008-NMCERT-008, 145 N.M. 255,

10 195 P.3d 1267, and NMSA 1978, Section 33-3-9(A) (1995). We proposed to affirm

11 based on the language of the statute pertaining to county jails which allows a sheriff

12 or jail administrator to deduct time for good behavior “with the approval of the

13 committing judge or presiding judge.” See Section 33-3-9(A); Wyman, 2008-NMCA-

14 113, ¶ 1.

15        Defendant responds by arguing that it was error to deny him the opportunity to

16 earn deductions from his sentence for good behavior, and that our decision in Wyman

17 is simply incorrect. Defendant claims that the metropolitan court action was contrary

18 to the language of the statute, and therefore, contrary to the intent of the Legislature.

19 Defendant includes claims that the sentence violated his right to due process and equal



                                               3
 1 protection and violated the doctrine of separation of powers, all of which were argued

 2 and addressed in Wyman. Defendant recognizes that there are different statutory

 3 articles applicable to “good time” credit for inmates in state correctional facilities and

 4 inmates in county jails. [MIO 6] Defendant argues, however, that the fact that the

 5 articles governing “good time” credit are both found in Chapter 33, titled Correctional

 6 Institutions, is evidence that the Legislature intended for “good time” credit to be the

 7 responsibility of the jail or prison, and not that of the sentencing judge.

 8        In support of his claims, Defendant cites to cases from our Supreme Court,

 9 including State v. Martinez, 1998-NMSC-023, 126 N.M. 39, 966 P.2d 747, and State

10 v. Aqui, 104 N.M. 345, 721 P.2d 771 (1986), limited in part on other grounds by

11 Brooks v. Shanks, 118 N.M. 716, 719-20, 885 P.2d 637, 640-41 (1994). We do not

12 find the cases persuasive as they involve very different situations from that in this

13 case. In Martinez, a case in which the defendant received a third DWI conviction, the

14 magistrate court relied on the defendant’s participation in alcohol treatment as the

15 basis for granting confinement credit. 1998-NMSC-023, ¶ 16. Our Supreme Court

16 determined that the Legislature mandated a jail term of 90 days for third-offense DWI

17 offenders, and therefore, the magistrate court action was contrary to the express intent

18 of the Legislature. Id. In Aqui, the question was whether the court had jurisdiction




                                               4
 1 to modify a sentence by awarding “good time” credit for time spent in pre-sentence

 2 confinement. 104 N.M. at 347, 721 P.2d at 773.

 3         In this case, on the other hand, the question is whether the sentencing court can

 4 impose a sentence that does not allow Defendant the opportunity to earn “good time”

 5 credit toward his sentence. That is the question that was addressed in Wyman. As

 6 discussed in Wyman, the plain language of the statute pertaining to imprisonment in

 7 county jails “requires ‘the approval of the committing judge or presiding judge’ before

 8 good time may be granted by the sheriff or jail administrator,” and “good time” credit

 9 is only a possibility and not a mandatory right. 2008-NMCA-113, ¶ 4. As in Wyman,

10 this case involves the discretion of the metropolitan judge to grant or deny the

11 opportunity to earn “good time” credit, and not the forfeiture of “good time” credit

12 already earned. Id. ¶¶ 5-6. Under the plain language of Section 33-3-9(A), the

13 metropolitan court did not exceed its authority.

14         For the reasons discussed in this opinion and in our calendar notice, we affirm

15 the decision of the district court in its entirety.

16         IT IS SO ORDERED.

17                                                  _______________________________
18                                                  MICHAEL E. VIGIL, Judge
19 WE CONCUR:

20 _______________________________
21 JONATHAN B. SUTIN, Judge

                                                5
1 _______________________________
2 CELIA FOY CASTILLO, Judge




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