State v. Herrera , 86 N.M. 134 ( 1974 )

OPINION

SUTIN, Judge.

Defendant was sentenced for a term of not less than ten nor more than fifty years for unlawful distribution of heroin pursuant to § 54-ll-20(B), N.M.S.A.1953 (Repl.Vol. 8, pt. 2, 1973 Supp.). Defendant appeals. We remand.

Section 54-11-20(B) reads as follows:

B.Except as authorized by the Controlled Substances Act, it is unlawful for any person to intentionally traffic. Any person who violates this subsection is, for the first offense, guilty of a second degree felony and, for the second and subsequent offenses, guilty of a first degree felony.

The Controlled Substances Act does not contain a penalty provision for second degree or first degree felonies.

The Controlled Substances Act enacted in 1972 is not a part of the Criminal Code enacted in 1963. See, State v. Sawyers, 79 N.M. 557, 445 P.2d 978 (Ct.App.1968).

Section 40A-29-11, N.M.S.A.1953 (2d Repl.Vol. 6) of the Criminal Code reads- as follows:

Sentencing authority for crimes not contained in Criminal Code. — A. Whenever a defendant is convicted of a crime under the Constitution, or a statute not contained in the Criminal Code, which specifies the penalty to be imposed on conviction, the court shall have the power to pronounce sentence and imposition of fine in accordance with the provisions prescribed by such statute or constitutional provision for the particular crime of which such person was convicted.

B. A crime declared to be a felony by the state Constitution or a statute not contained in the Criminal Code, without specification of the sentence or fine to be imposed on conviction, shall constitute a fourth degree felony as prescribed under this code for the purpose of the sentence and shall be so sentenced.

C. Any other crime for which the sentence to be imposed upon conviction is not specified shall constitute, for the purpose of sentence, a petty misdemean- or. [Emphasis added],

This section is clear and unambiguous. There is no room for construction. It must be given effect. State v. Ortiz, 78 N.M. 507, 433 P.2d 92 (Ct.App.1967). Defendant must be sentenced for a fourth degree felony pursuant to § 40A-29-3(D), N.M.S.A.1953 (2d Repl.Vol. 6) of the Criminal Code. It reads as follows:

D. Where the defendant has been convicted of a crime constituting a fourth degree felony, the judge shall sentence such person to be imprisoned in the penitentiary for the term of not less than one [1] year nor more than five [5] years, or to the payment of a fine of not more than five thousand dollars ($5,000), or to both such imprisonment and fine in the discretion of the judge.

The remaining issue is this: Should we disregard § 40A-29-11, supra, which is “Sentencing authority for crimes not contained in Criminal Code”, and read into the Controlled Substances Act, the penalty provided for a second degree felony in the Criminal Code, being § 40A-29-3(B), supra? The answer is “No”.

This court cannot usurp the power of the legislature and prescribe penalties in a special criminal statute. The fixing of penalties is exclusively a legislative function. State v. Turnbow, 81 N.M. 254, 466 P.2d 100 (1970); McCutcheon v. Cox, 71 N.M. 274, 377 P.2d 683 (1963). This court must presume that the legislature, in enacting the 1972 Controlled Substances Act knew about the existence of § 40 A-29-11, supra, of the Criminal Code. State v. Trujillo, 85 N.M. 208, 510 P.2d 1079 (Ct.App.1973).

The only way this court could read the penalty provisions of the Criminal Code into the Controlled Substances Act would be to add words onto § 54 — 11-20(B) to the effect that where the defendant has been convicted of a first or second degree felony, the judge shall sentence such person as provided in § 40A-29-3(A) and (B), supra. This we cannot do. De Graftenreid v. Strong, 28 N.M. 91, 206 P. 694 (1922); State v. Alexander, 46 N.M. 156, 123 P.2d 724 (1942). “We may not properly supply legislative omissions, no more so than the legislature can with propriety assume the performance of judicial functions.” Apodaca v. Viramontes, 53 N.M. 514, 524, 212 P.2d 425, 431 (1949). If a change is needed in a statute, the legislature and not the courts is the place to go. Hendricks v. Hendricks, 55 N.M. 51, 226 P.2d 464 (1950).

There is no merit to defendant’s remaining point.

The sentence is reversed. The trial court is directed to resentence defendant in accordance with § 40A-29-3(D), supra.

It is so ordered.

HENDLEY, J„ concurs. LOPEZ, J., dissents.