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State v. Edmondson5/28/1991
Texas court, the court's action in deferring proceedings was not a "conviction" for purpose of this state's habitual criminal statute. I
The record reflects that the Texas criminal conviction relied upon by the state in the instant case as a basis for the enhancement of defendant's New Mexico sentence was dismissed by the Texas court and his arrest record was ordered expunged. Absent a showing that our state legislature, in adopting the provisions of this state's habitual criminal statute, Section31-18-17, intended that a prior conviction incurred in a sister state and subsequently ordered set aside, may nevertheless serve as the basis for enhancing a sentence imposed upon defendant in New Mexico, I would apply the rule of lenity. See ) (statutes authorizing a more severe punishment upon conviction of a subsequent criminal offense are penal in nature and strictly construed; doubts about the construction of penal statutes are resolved in favor of the rule of lenity.) Thus, I believe that enhancement of defendant's sentence in the present case based upon the Texas conviction for purposes of enhancement of defendant's sentence under the provisions of Section 31-18-17 and exceeds the scope of our habitual sentencing act.
I would affirm defendant's convictions but would remand the case for resentencing.
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