STATE OF NEW MEXICO v. MARCUS BOOTH (2026)

OPINION

{1} The State appeals the district court's order revoking and reinstating Defendant Marcus Booth's probation despite his uncontested designation as a habitual offender, arguing the sentence imposed by the district court was illegal insofar as it credited time Defendant previously served on probation toward the one-year period of mandatory incarceration required by the habitual offender sentencing statute. In sentencing Defendant, the district court applied both NMSA 1978, Section 31-21-15(B) (2016), which provides that when a defendant violates probation following deferral of an initial sentence, credit “shall be given for time served on probation” as to “any sentence that might originally have been imposed,” and NMSA 1978, Section 31-18-17(A) (2003), which provides that a habitual offender sentencing enhancement “shall not be suspended or deferred” absent certain specific circumstances. The district court asserted its “discretion to find substantial and compelling reasons to suspend or defer [Defendant's] mandatory habitual offender time,” citing as justification Defendant's enrollment in a treatment program, employment, and familial support. We agree with the State that Section 31-18-17(A) governs Defendant's mandatory habitual offender sentence and that the facts of this case do not permit a finding of substantial and compelling reasons as justification to suspend or defer Defendant's sentence. While the district court's jurisdiction to issue Defendant a statutorily compliant sentence has lapsed, we write formally to clarify imposition of habitual offender enhancements during probation revocation proceedings. Due only to the district court's lack of jurisdiction, we affirm.

BACKGROUND

{2} In March 2022, Defendant pleaded no contest to the crime of battery of a peace officer, in violation of NMSA 1978, Section 30-22-24 (1971), as well as resisting, evading or obstructing an officer, in violation of NMSA 1978, Section 30-22-1(D) (1981). At the time, the State agreed to dismiss the latter offense and also agreed not to pursue habitual offender enhanced sentencing for Defendant's previous felony conviction so long as Defendant did not violate his probation. The district court sentenced Defendant to 18 months of incarceration but suspended execution of that sentence, instead requiring Defendant to serve 18 months of supervised probation less the 45 days he was incarcerated before being sentenced.

{3} In November and December 2022, Defendant violated his probation twice. The latter violation was based on his arrest for possession of fentanyl. In the ensuing probation violation report, Defendant's probation officer recommended that Defendant's probation be revoked. The State filed a petition, and later an amended petition, asserting both violations and the new charges Defendant faced. In February 2023, the State filed a supplemental criminal information seeking habitual offender enhancement based on Defendant's prior felony convictions. In April, the district court held a hearing regarding the alleged violations and the supplemental criminal information. Defendant pleaded no contest to the violation set forth in the State's amended petition. As to sentencing, defense counsel successfully argued that Defendant should receive presentence incarceration credit as well as probation credit against any subsequently imposed sentence, stating Defendant had earned “459 days so far total credit,” which the district court agreed “consume[d]” the required period of incarceration.

{4} The State filed a motion to reconsider, contending that when the district court illegally suspended 320 of the mandatory 365 incarceration days required by Section 31-18-17(A), Defendant's sentence should only have been reduced by the 45 days of presentence confinement credit he previously served. After a hearing on the State's motion, the district court filed a minute order, relying on Section 31-21-15(B), reiterating its earlier decision as well as rejecting the State's argument that such ran afoul of Section 31-18-17(A)’s required period of incarceration. In its minute order, the district court imposed the 365-day habitual offender enhancement, but credited Defendant with 450 days served on probation. The district court then issued an order revoking Defendant's probation and resentenced Defendant to 18 months of incarceration, stating again that Defendant's credited time “consumes the mandatory jail time” of the habitual offender statute, and suspended Defendant's remaining sentence contingent upon his completing a six-month program at a rehabilitation facility.

{5} This appeal followed.

DISCUSSION

{6} On appeal, the State renews its contention that the district court erred in applying both Sections 31-21-15(B) and 31-18-17(A) to credit past-served probationary time in lieu of the period of statutory mandatory incarceration to which habitual offenders like Defendant are subject. Defendant asserts that the State's argument is moot because he served his sentence, and even if the issue is not moot, the district court's sentence was not illegal. We first briefly address mootness and whether an exception to our mootness doctrine applies.

I. Mootness

{7} We note the State does not address mootness or the exceptions thereto on appeal; however, we may employ the mootness doctrine should a case warrant it, as we conclude is here the case. See Republican Party of N.M. v. N.M. Tax'n & Revenue Dep't, 2012-NMSC-026, ¶ 9, 283 P.3d 853 (“While we acknowledge and commend the efforts of the parties to resolve their dispute, it is for this Court to decide whether the case is moot and whether we retain jurisdiction to issue an opinion.”).

{8} Generally, appellate courts do not decide moot cases. See Gunaji v. Macias, 2001-NMSC-028, ¶ 9, 130 N.M. 734, 31 P.3d 1008. “An appeal is moot when no actual controversy exists, and an appellate ruling will not grant the appellant any actual relief.” State v. Sergio B., 2002-NMCA-070, ¶ 9, 132 N.M. 375, 48 P.3d 764. However, exceptions permit review of moot cases that “present issues of substantial public interest or which are capable of repetition yet evade review.” Gunaji, 2001-NMSC-028, ¶ 10. An appellate court's review of such cases is discretionary. See Cobb v. State Canvassing Bd., 2006-NMSC-034, ¶ 14, 140 N.M. 77, 140 P.3d 498 (noting that appellate courts “may review moot cases” that fall within at least one of the two exceptions).

{9} Defendant asserts that this case is moot given expiration of the term of his sentence or, alternatively, that the district court no longer has jurisdiction to impose the punishment sought by the State, which would be to serve the entirety of his mandatory one-year habitual offender sentence incarcerated. See State v. Roybal, 1995-NMCA-097, ¶ 7, 120 N.M. 507, 903 P.2d 249 (“Even an [illegal] sentence cannot be set aside and increased once the defendant has fully served the sentence, because that would be tantamount to punishing the defendant twice, in contravention of the double jeopardy provisions of Article II, Sections 15 and 18 of the New Mexico Constitution.”). Citing no authority, the State replies in a single page that because the sentence is illegal, “[m]ootness analysis cannot be used to defeat the State's right of appeal.” While Defendant is correct that his case is now moot because the period of time for which he could be incarcerated has ended, and the State is incorrect that such is effectively irrelevant when an illegal sentence is imposed, we nonetheless determine the issue raised by the State fits within our mootness exceptions. See Cobb, 2006-NMSC-034, ¶¶ 14, 24; Republican Party of N.M., 2012-NMSC-026, ¶ 9.

{10} Briefly, we note the nature of the State's central argument on appeal, which is that Defendant's mandatory one-year incarceration habitual offender sentence resulted from the district court's erroneous merger of Sections 31-21-15(B) and 31-18-17(A). In New Mexico, courts have only the sentencing authority granted to them by the Legislature. See State v. Sinyard, 1983-NMCA-150, ¶ 4, 100 N.M. 694, 675 P.2d 426 (“The trial court's authority to sentence is only that which has been provided by statute.”). Thus, it is of particularly substantial public interest that enacted statutes are adhered to by sentencing courts. Indeed, our state courts generate a steady flow of cases involving criminal sentences that may expire before resolution of a given appeal by this court. Many sentences are of a length shorter than the duration of a typical appeal, leaving such sentences poorly suited to timely correction. In sum, although Defendant will not be resentenced as the State asks, interpreting Sections 31-21-15(B) and 31-18-17(A) correctly is an issue of substantial public interest that is also capable of repetition yet evading review. See Sinyard, 1983-NMCA-150, ¶ 4; see also Republican Party of N.M., 2012-NMSC-026, ¶ 10 (“A case presents an issue of substantial public interest if it involves a constitutional question or affects a fundamental right such as voting.”); Cobb, 2006-NMSC-034, ¶ 14 (identifying a “short time frame” within which to resolve a given issue as contributing to a determination that an otherwise moot case is capable of repetition yet evading review). We thus exercise our discretion to consider the State's substantive argument.

II. Defendant's Sentence

{11} The district court's “power to sentence is derived exclusively from statute.” State v. Chavarria, 2009-NMSC-020, ¶ 12, 146 N.M. 251, 208 P.3d 896 (internal quotation marks and citation omitted). As stated, the State's challenge to the legality of Defendant's sentence turns on the interplay between Section 31-21-15(B), which governs probation revocations, and Section 31-18-17(A), which governs habitual offender sentencing. “Statutory interpretation is an issue of law, which we review de novo.” State v. Duhon, 2005-NMCA-120, ¶ 10, 138 N.M. 466, 122 P.3d 50. “Our primary goal when interpreting statutory language is to give effect to the intent of the [L]egislature.” State v. Torres, 2006-NMCA-106, ¶ 8, 140 N.M. 230, 141 P.3d 1284. “We do this by giving effect to the plain meaning of the words of statute, unless this leads to an absurd or unreasonable result.” State v. Marshall, 2004-NMCA-104, ¶ 7, 136 N.M. 240, 96 P.3d 801.

{12} Generally, if a probationer has violated probation, Section 31-21-15(B) provides:

The court shall then hold a hearing, which may be informal, on the violation charged. If the violation is established, the court may continue the original probation or revoke the probation and either order a new probation ․ or require the probationer to serve the balance of the sentence imposed or any lesser sentence. If imposition of sentence was deferred, the court may impose any sentence that might originally have been imposed, but credit shall be given for time served on probation.

In applying this statute, our Supreme Court has held that when probation is revoked based on a violation thereof, “the court must give credit against the defendant's sentence for time previously served on probation.” State v. Ordunez, 2012-NMSC-024, ¶ 7, 283 P.3d 282. As to such credit, it is long established that the trial court is “to make a judicial determination of the proper credit to be allowed.” State v. Murray, 1970-NMCA-045, ¶ 13, 81 N.M. 445, 468 P.2d 416.

{13} Section 31-18-17(A), governing habitual offender enhancement, provides differently, stating:

A person convicted of a noncapital felony ․ who has incurred one prior felony conviction that was part of a separate transaction or occurrence or conditional discharge under [NMSA 1978,] Section 31-20-13 [(1994)] is a habitual offender and [their] basic sentence shall be increased by one year. The sentence imposed pursuant to this subsection shall not be suspended or deferred, unless the court makes a specific finding that the prior felony conviction and the instant felony conviction are both for nonviolent felony offenses and that justice will not be served by imposing a mandatory sentence of imprisonment and that there are substantial and compelling reasons, stated on the record, for departing from the sentence imposed pursuant to this subsection.

As worded, the habitual offender enhancement is mandatory absent specific circumstances. As well, its application is triggered by a prosecutor's exercise of discretion to pursue the enhancement. See March v. State, 1989-NMSC-065, ¶ 4, 109 N.M. 110, 782 P.2d 82 (stating that “the prosecutor has discretion to seek or not to seek enhanced sentencing,” despite mandatory language of the statute).

{14} Based on the differing language of Section 31-18-17(A), we agree with the State's argument that the district court's order revoking probation and reinstatement to probation, relying in part on Section 31-21-15(B), resulted in an illegal sentence under the facts of this case. Defendant did not dispute his eligibility to be classified as a habitual offender, having pleaded no contest to the fourth-degree felony of battery upon a peace officer and admitting that he was previously convicted of contributing to the delinquency of a minor, also a fourth-degree felony. It is also undisputed that because the State exercised its discretion to seek enhancement, the district court was obligated to impose the separate one-year habitual offender enhancement. See State v. Trujillo, 2007-NMSC-017, ¶ 10, 141 N.M. 451, 157 P.3d 16.

{15} Therefore, when the State filed its supplemental criminal information following Defendant's probation violation seeking habitual offender enhancement based on what was stated in the plea agreement, Defendant was subject to one year of mandatory incarceration. Yet in its order revoking and reinstating probation, the district court found that “[t]he remaining balance of the sentence is suspended, and ․ Defendant is reinstated on a probationary term of ․ 341 days.” In so doing, the district court identified the existence of “substantial and compelling reasons” for its decision in its written order, noting positive aspects of Defendant's performance on probation, including his employment, family involvement in Defendant's care, acceptance into treatment, and a vehicle Defendant had recently acquired. But the underlying nature of Defendant's conviction—felony battery of an officer—foreclosed the availability of a nonincarcerative habitual offender enhancement. As the State contends, the district court's finding related only to Defendant's positive and commendable progress on probation, but under the circumstance of Defendant's conviction did not bestow authority to suspend Defendant's mandatory habitual offender sentence by crediting against it the time Defendant served on probation. See § 31-18-17(A).

{16} As for Section 31-21-15(B)’s inapplicability to the one-year sentence required by the habitual offender statute—and why the former statute cannot be fully applied in tandem with the latter—Section 31-21-15(B) governs probationary credit toward the “balance of the sentence imposed.” See Ordunez, 2012-NMSC-024, ¶ 7 (“We have interpreted the word ‘balance’ in a predecessor version of this statutory provision, NMSA 1953, § 41-17-28.1(B) (1963), to mean that where a court decides to revoke probation based on a probation violation, the court must give credit against the defendant's sentence for time previously served on probation.”); State v. Reinhart, 1968-NMSC-059, ¶¶ 7-14, 79 N.M. 36, 439 P.2d 554 (explaining why the phrase that includes the word “balance” requires credit for time on probation to be given to defendants whose sentences are suspended); State v. Sublett, 1968-NMCA-001, ¶ 8, 78 N.M. 655, 436 P.2d 515 (stating that the “balance of the sentence imposed” means the term remaining after giving credit for allowable probation time). As relevant here, this is interpreted as credit for time Defendant spent on probation only to reduce “the balance of the sentence imposed.” But here, Defendant had no balance to serve on the suspended sentence of 18 months because he had already served 45 days in jail plus 526 days on probation, a total that exceeds the 18 months of prison time that was suspended. However, the habitual incarceration time of 365 days is a separate, second sentence from “the sentence imposed” as governed by Section 31-21-15(B) upon a violation of probation, but it is a separate, second sentence subject to suspension only as outlined in Section 31-18-17(A) itself.

{17} And to reiterate, the language of Section 31-18-17(A) makes clear that “[t]he sentence imposed pursuant to this subsection shall not be suspended or deferred, unless the court makes a specific finding that the prior felony conviction and the instant felony conviction are both for nonviolent felony offenses and that justice will not be served by imposing a mandatory sentence of imprisonment and that there are substantial and compelling reasons, stated on the record, for departing from the sentence imposed pursuant to this subsection.” (Emphasis added.) And we have stated that based upon its violent nature, Defendant's sentence was not eligible for suspension or deferral. See § 31-18-17(A); see also § 31-18-17(E) (providing that a “ ‘nonviolent felony offense’ means application of force, threatened use of force or a deadly weapon was not used by the offender in the commission of the offense”).

{18} We lastly observe that to the extent the district court and the parties each rely on their own interpretations of the holding in State v. Freed, 1996-NMCA-044, 121 N.M. 569, 915 P.2d 325, we find our interpretation of the relevant statutory language as discussed sufficient to resolve the issue before us. In Freed, the defendant violated his probation and “was resentenced to eighteen months on the current felony [and an additional] four years for the habitual[ ]offender enhancement.” Id. ¶ 5. The district court credited the defendant for time served in custody and on probation; however, that applicable credit was only applied toward his underlying sentence, and not the mandatory habitual offender enhancement. Id. ¶ 14. Freed is thus consistent with our holding today insofar as time served on probation reduced only the balance of Defendant's sentence, and not the separate sentence imposed under the habitual offender enhancement.

{19} We conclude that the district court erred when it credited Defendant for time served on probation against his mandatory one-year incarceration habitual offender sentence. Because the district court no longer has jurisdiction given Defendant's completion of his sentence, we decline the State's request for remand.

CONCLUSION

{20} For the foregoing reasons, we affirm.

{21} IT IS SO ORDERED.

J. MILES HANISEE, Judge

WE CONCUR: MEGAN P. DUFFY, Judge ZACHARY A. IVES, Judge