If at any time, either after sentence or conviction, it appears that a person convicted of a noncapital felony is or may be a habitual offender, it is the duty of the district attorney of the district in which the present conviction was obtained to file an information charging that person as a habitual offender.

History: 1953 Comp., § 40A-29-32, enacted by Laws 1977, ch. 216, § 8.

Cross references. — For general consideration of the habitual offender statute, see notes to 31-18-17 NMSA 1978.

For procedure and sentence, see 31-18-20 NMSA 1978.

Habitual offender statute is mandatory and gives district attorney no discretion as to whether he will invoke the habitual criminal provision. State v. Sedillo, 1971-NMCA-003, 82 N.M. 287, 480 P.2d 401.

Habitual offender statute is mandatory. — The district attorney had a duty to prosecute defendant as an habitual offender if his conviction brought him within the statute. State v. Cruz, 1971-NMCA-047, 82 N.M. 522, 484 P.2d 364.

The provisions of this act have been construed as mandatory. State v. Baldonado, 1968-NMCA-025, 79 N.M. 175, 441 P.2d 215.

The provisions of the habitual criminal statute are mandatory. State v. Santillanes, 1982-NMCA-118, 98 N.M. 448, 649 P.2d 516.

The provisions of the Habitual Offender Act are mandatory, and the district attorney has an affirmative duty to prosecute habitual offenders. State v. Davis, 1986-NMSC-031, 104 N.M. 229, 719 P.2d 807.

Discretion to seek or not seek enhanced sentencing. — Despite the mandatory tone of this section, the prosecutor has discretion to seek or not to seek enhanced sentencing. March v. State, 1989-NMSC-065, 109 N.M. 110, 782 P.2d 82.

No vindictiveness in actions of district attorney's office in seeking habitual offender enhancements. — The prosecution has a statutory duty, at any time, either after sentence or conviction, if it appears that a person convicted of a noncapital felony is or may be a habitual offender, to file an information charging that person as a habitual offender. State v. Duncan, 1994-NMCA-030, 117 N.M. 407, 872 P.2d 380, cert. denied, 117 N.M. 524, 873 P.2d 270.

Enhanced sentence proper even though probation completed, where maximum statutory sentencing period unexpired. — Under this section, the imposition of an enhanced sentence is proper even though a defendant has completed a period of probation, where the maximum period for which he could have been sentenced for the offense has not yet expired. State v. Santillanes, 1982-NMCA-118, 98 N.M. 448, 649 P.2d 516.

Statutory scheme does not delegate legislative responsibility to prosecution. — In no sense does the habitual offender statutory scheme delegate to the prosecution the legislative responsibility to fix criminal penalties. Martinez v. Romero, 626 F.2d 807 (10th Cir.), cert. denied, 449 U.S. 1019, 101 S. Ct. 585, 66 L. Ed. 2d 481 (1980).

Specific statute controls over 39-1-1 NMSA 1978. — As the provisions of the habitual offender statute are mandatory, the specific provision of filing charges "at any time" in the statute controls over the general provision of Section 39-1-1 NMSA 1978, which gives a trial court jurisdiction over its final judgment in a nonjury trial for 30 days after entry of final judgment. State v. Padilla, 1978-NMCA-060, 92 N.M. 19, 582 P.2d 396, cert. denied, 92 N.M. 180, 585 P.2d 324.

State's filing information violated expectation of finality in sentencing. — State's filing information as to enhanced sentencing after defendant's earning of meritorious deductions brought his service of sentence to an end violated his objectively reasonable expectation of finality in sentencing for double jeopardy purposes. March v. State, 1989-NMSC-065, 109 N.M. 110, 782 P.2d 82.

Defendant's expectation of "final" sentencing. — Defendant, a three-time felony offender, had no reasonable expectation of finality in a three-year probationary sentence for a larceny conviction; therefore, it was not a violation of his double jeopardy rights for the state to seek a subsequent conviction of defendant, during the probationary period, under the habitual offender laws. State v. Villalobos, 1998-NMSC-036, 126 N.M. 255, 968 P.2d 766.

District attorney's or judge's knowledge of prior convictions. — Knowledge by the district attorney of prior convictions, and even knowledge by the judge, does not bar a prosecution under the habitual offender statute, the setting aside of a former sentence and the imposition of a new one. State v. McCraw, 1955-NMSC-050, 59 N.M. 348, 284 P.2d 670.

Prosecution's knowledge of prior felony conviction. — Where, before the defendant is convicted for a felony, the prosecutor knows of a prior felony conviction, this knowledge does not require the dismissal of a latter habitual offender charge because of a filing delay. State v. Mayberry, 1982-NMCA-061, 97 N.M. 760, 643 P.2d 629.

Information does not purport to charge criminal offense. — An information under the habitual offender statutes does not purport to charge a criminal offense, but constitutes only a charge of prior convictions by defendant, which, if true, operates to enhance the penalty to be imposed. State v. Silva, 1967-NMCA-008, 78 N.M. 286, 430 P.2d 783.

Charging by supplemental information. — The state did not violate its own procedures, and thus did not violate due process, by charging appellant as an habitual offender by supplemental information, since the supplemental information did not charge an offense, but rather a status, that of habitual offender. Minner v. Kerby, 30 F.3d 1311 (10th Cir. 1994).

Charging by information sufficient. — Defendant had no right, either under New Mexico law or under the United States Constitution, to a grand jury indictment as to his habitual offender status. Minner v. Kerby, 30 F.3d 1311 (10th Cir. 1994).

Pleading prior convictions in information. — The controlling statute made no requirement that prior convictions be pleaded in the information itself. Shankle v. Woodruff, 1958-NMSC-054, 64 N.M. 88, 324 P.2d 1017.

Courts in which defendant was previously convicted need not be named. — The habitual offender statutes do not require that the court or courts in which a defendant has been previously convicted be named. State v. Silva, 1967-NMCA-008, 78 N.M. 286, 430 P.2d 783.

Information not insufficient because of improper grammatical construction. — Assuming the meaning to be plain, information or indictment is not rendered insufficient because of improper grammatical construction. State v. Silva, 1967-NMCA-008, 78 N.M. 286, 430 P.2d 783.

Objection to information not grounds for release on habeas corpus. — Objection to the information charging prior conviction sufficient to invoke the Habitual Criminal Act might have been made the basis of a timely appeal, but was not grounds for release on habeas corpus. Shankle v. Woodruff, 1958-NMSC-054, 64 N.M. 88, 324 P.2d 1017.

The provisions of the habitual criminal statute are mandatory. 1987 Op. Att'y Gen. No. 87-23.

Law reviews. — For annual survey of New Mexico law relating to criminal procedure, see 13 N.M.L. Rev. 341 (1983).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Duty and discretion of district or prosecuting attorney as regards prosecution for criminal offenses, 155 A.L.R. 10.