Exercise 23

The defendant is convicted of misdemeanor stalking in magistrate court based on several instances of following the victim to her place of employment, her son's school and her friends' homes.

Which of the following sentences for the misdemeanor stalking conviction is correct?

A. A fine of $500, ordering the defendant to undergo and complete professional counseling at his own expense, and ordering the defendant to pay $500 in restitution to the victim.

Answer A is incorrect. The fine is correct in that it is within the allowable statutory range of punishment for misdemeanors under §31-19-1(A). Additionally, under the stalking statute, §30-3A-3(D), the judge is required to order the defendant to undergo and complete professional counseling in addition to any other punishment imposed. However, ordering restitution is incorrect as there is no indication that the victim suffered any actual damages and provided proof of such, as required by State v. Madril, 105 N.M. 396 (Ct. App. 1987). Please select another answer.

B. A fine of $250, a sentence of 20 days in the county jail, and ordering the defendant to undergo and complete professional counseling at his own expense.

Answer B is correct! The fine and jail sentence are within the allowable range of punishment for misdemeanors under §31-19-1(A). Additionally, under the stalking statute, §30-3A-3(D), the judge is required to order the defendant to undergo and complete professional counseling in addition to any other punishment imposed.

C. A fine of $250 and a sentence of 20 days in the county jail, both of which are suspended, and ordering the defendant to undergo and complete professional counseling at his own expense.

Answer C is incorrect. The jail sentence and fine are both appropriate and the suspension of both is permissible under §31-19-1(A) and -1(C). Also, under the stalking statute, §30-3A-3(D), the judge is required to order the defendant to undergo and complete professional counseling in addition to any other punishment imposed. However, under §31-19-1(C), when the judge suspends or defers a misdemeanor sentence, the court must order the defendant to be placed on either supervised or unsupervised probation for all or some of the period of suspension or deferment. That is lacking from the judge's sentence. Please select another answer.