New Mexico Statutes
Article 2 - State Correctional Facilities
Section 33-2-19 - What convicts to be confined.

Convicts sentenced to the corrections department for life or any term for which they may be confined in a corrections facility by any court having jurisdiction to try causes under the laws of the United States, held within this state, shall be received into the corrections facility by the secretary of corrections or his designee when delivered by the authority of the United States and shall be kept in the corrections facility in pursuance of their sentences. All persons convicted of any crime where the punishment is imprisonment for a term of one year or more, after accounting for any period of the sentence being suspended or deferred and any credit for presentence confinement, shall be imprisoned in a corrections facility, unless otherwise provided by law, and judgments shall be issued accordingly. All persons convicted of any crime punishable with death who are pardoned on condition of being imprisoned, either for life or a term of years, or whose sentences are commuted for imprisonment for life or a term of years shall be so imprisoned in a corrections facility. All persons imprisoned or confined in a corrections facility shall be subject to its rules and regulations.
History: Laws 1889, ch. 76, § 11; C.L. 1897, § 3500; Code 1915, § 5062; C.S. 1929, § 130-145; 1941 Comp., § 45-137; 1953 Comp., § 42-1-37; 1990, ch. 8, § 1.
The 1990 amendment, effective May 16, 1990, added the catchline; divided the former first sentence into the present first three sentences; substituted "corrections facility" for "penitentiary" throughout the section; in the present first sentence, substituted "the corrections department" for "hard labor in the penitentiary", "shall be received" for "must be received", and "secretary of corrections or his designee" for "superintendent thereof"; rewrote the provisions of the present second sentence which read "All persons convicted of any crime where the punishment is imprisonment for a term or time exceeding six months shall be imprisoned in the penitentiary, and all courts in which such convictions shall be had shall give judgment accordingly"; and made minor stylistic changes.
Penitentiary place of confinement when maximum sentence one year. — Since defendant has a valid maximum sentence of not more than one year, he may be confined, under that sentence, up to one full year. Thus, under either 31-20-2 or 33-2-19 NMSA 1978 the proper place of his confinement is the state penitentiary. State v. Sawyers, 1968-NMCA-051, 79 N.M. 557, 445 P.2d 978 (decided under prior law).
Calculation of sentence. — Under this section, defendant's sentence to one year would be calculated as a sentence of less than one year after crediting his pre-sentence time served; thus, the law did not require the court to sentence him to prison, and his sentence to jail was legal. State v. Brown, 1999-NMSC-004, 126 N.M. 642, 974 P.2d 136.
Error in mittimus not grounds for discharge. — A prisoner who has been legally and properly sentenced to prison cannot obtain his discharge simply because there is an imperfection or error in the mittimus. Shankle v. Woodruff, 1958-NMSC-054, 64 N.M. 88, 324 P.2d 1017.
Section impliedly repealed as to sentences under a year. — There is a repugnancy between 31-20-2 NMSA 1978 (which requires penitentiary imprisonment only for sentences of one year or more) and this section, and between 31-19-1 NMSA 1978 (which requires that Criminal Code misdemeanors be imprisoned in a county jail) and this section, and therefore, this section has been repealed insofar as it provides that sentences exceeding six months (but less than one year) must be served in the state penitentiary because both 31-19-1 and 31-20-2 NMSA 1978 were enacted after this section. 1973 Op. Att'y Gen. No. 73-67 (decided prior to 1990 amendment) (rendered under prior law).
Section has never been used to combine short jail sentences to make the convicted person eligible to serve his time in the penitentiary, and its utilization for such a purpose cannot be justified. 1973 Op. Att'y Gen. No. 73-67.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 18 C.J.S. Convicts §§ 10, 11; 72 C.J.S. Prisons and Rights of Prisoners §§ 4, 21, 130.

Structure New Mexico Statutes