ALTERATION OF SENTENCE BASED ON CIRCUMSTANCES

HB0075

HOUSE BILL 75

57th legislature - STATE OF NEW MEXICO - second session, 2026

INTRODUCED BY

Andrea Reeb
and
Luis M. Terrazas
and
Nicole Chavez

AN ACT

RELATING TO CRIME; PROVIDING FOR ALTERATION OF A BASIC SENTENCE
UPON A COURT'S FINDING BASED ON CLEAR AND CONVINCING EVIDENCE
OF MITIGATING CIRCUMSTANCES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1.
Section 31-18-15.1 NMSA 1978 (being Laws 1979,
Chapter 152, Section 2, as amended) is amended to read:

"31-18-15.1. ALTERATION OF BASIC SENTENCE--MITIGATING OR
AGGRAVATING CIRCUMSTANCES--PROCEDURE.--

A. The court shall hold a sentencing hearing to
determine if mitigating or aggravating circumstances exist and
take whatever evidence or statements it deems will aid it in
reaching a decision to alter a basic sentence. The judge may
alter the basic sentence as prescribed in Section 31-18-15 NMSA
1978 upon:

(1) a finding by the judge
by clear and
convincing evidence
of any mitigating circumstances surrounding
the offense or concerning the offender; or

(2) a finding by a jury or by the judge beyond
a reasonable doubt of any aggravating circumstances surrounding
the offense or concerning the offender.

B. When the determination of guilt or innocence for
the underlying offense is made by a jury, the original trial
jury shall determine whether aggravating circumstances exist.
If the offender waives a jury trial for the underlying offense,
the offender retains the right to a jury determination of
aggravating circumstances. If the offender waives a jury
determination of aggravating circumstances, the basic sentence
may be altered upon a finding by the judge beyond a reasonable
doubt of any aggravating circumstances surrounding the offense
or concerning the offender.

C. For the purpose of this section, the following
shall not be considered aggravating circumstances:

(1) the use of a firearm, as provided in
Section 31-18-16 NMSA 1978;

(2) a prior felony conviction, as provided in
Section 31-18-17 NMSA 1978;

(3) the commission of a crime motivated by
hate, as provided in the Hate Crimes Act; or

(4) any evidence relating to the proof of an
essential element of the offense.

D. Not less than five days prior to trial or a
sentencing proceeding pursuant to a plea agreement, the state
shall give notice that it intends to seek an increase to an
offender's basic sentence based upon aggravating circumstances.
The notice shall state the aggravating circumstances upon which
the sentence increase is sought.

E. Presentation of evidence or statements regarding
an alleged aggravating circumstance shall be made as soon as
practicable following the determination of guilt or innocence.

F. If the judge determines to alter the basic
sentence, the judge shall issue a brief statement of reasons
for the alteration and incorporate that statement in the record
of the case.

G. The amount of the alteration of the basic
sentence for noncapital felonies shall be determined by the
judge. However, in no case shall the alteration exceed one-third of the basic sentence; provided that when the offender is
a serious youthful offender or a youthful offender, the judge
may reduce the sentence by more than one-third of the basic
sentence."

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