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Sentencing - Fourth Degree Felony

Tutorial on the crimes of stalking and harassment for New Mexico judges

Under §30-3A-3.1(B), a first conviction for aggravated stalking is a fourth degree felony, and a second or subsequent aggravated stalking conviction is a third degree felony. The stalking statute does not specify what the possible sentencing range is for conviction. Rather, §31-18-15 provides the general sentencing authority for noncapital felonies.

Fourth Degree Felony Aggravated Stalking

Pursuant to §31-18-15 and §30-3A-3.1(C), the possible statutory sentence for fourth degree felony aggravated stalking, meaning the first conviction for such an offense, is as follows:

  • 18 months imprisonment, §31-18-15(A)(10);
  • In addition to the imposition of the basic sentence of imprisonment, the court may impose a fine not to exceed $5,000 dollars, §31-18-15(E)(9); and
  • In addition to any punishment imposed, the court must order the defendant to participate in and complete a program of professional counseling at his or her own expense.

In the judgment and sentence ordering imprisonment in a correctional facility, the judge must include a period of parole to be served in accordance with §31-21-10 following completion of any actual time in prison. Included with that parole time must be authority to require, as a condition of parole, payment by the defendant of the costs of parole services and reimbursement to a law enforcement agency or local crime stoppers program. §31-18-15(C).

The court has the authority to suspend or defer the basic sentence of imprisonment for fourth degree felony aggravated stalking under §31-18-15(D). If that is done, a period of parole must still be served by defendant in accordance with §31-21-10. Under §31-21-10(C), for a fourth degree felony, the period of parole is for 1 year and that must be served under the guidance and supervision of the state's parole board.

As required under §31-18-15(F), and as provided for under §33-2-34(L)(4)(o), if the nature of the aggravated stalking offense and the resulting harm are such that the judge determines the crime to be a "serious violent offense," the judge should affirmatively state that when imposing the sentence. The designation of fourth degree felony aggravated stalking as a "serious violent offense" affects the ability of defendant to earn meritorious deductions from the sentence imposed. See §33-2-34.

Finally, under §31-18-15(F), the judge is to affirmatively advise the defendant that his or her sentence of imprisonment for fourth degree felony aggravated stalking is subject to the statutory provisions dealing with state correctional facilities, specifically §§33-2-34, 33-2-36, 33-2-37 and 33-2-38.

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