Santa Fe, New Mexico criminal defense lawyer represented Defendant charged with second-degree sexual penetration

Santa Fe County Courthouse

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Defendant-Appellee Derrick Romero (Appellee) pleaded guilty to second-degree criminal sexual penetration (CSP), contrary to NMSA 1978, Section 30-9-11(E)(1) (2009). In the first judgment and sentence (J&S), the district court erred in ordering that Appellee serve two years of parole, resulting in an unlawfully short period of mandatory parole. Thirteen days later, the district court ostensibly corrected the sentencing error by entering a second amended J&S, which replaced Appellee's parole period of two years with five-to-twenty years. Both of these parole periods were illegal sentences, however, as NMSA 1978, Section 31-21-10.1(A)(2) (2007), requires a sex offender convicted of CSP in the second degree to serve an "indeterminate period of supervised parole for . . . not less than five years and up to the natural life of the sex offender.”



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We hold that Torres is overruled regarding abrogation of a district court’s common law jurisdictional authority to correct an illegal sentence. Under this holding, we reverse the district court and remand for imposition of the statutorily required parole sentence. We direct the Rules of Criminal Procedure for State Courts Committee to clarify the length of time that a district court retains jurisdiction to correct an illegal sentence in accordance with this opinion. Finally we hold, consistent with the additional Rule 5-303 hearing required by due process, that Appellee is entitled to an opportunity for plea withdrawal.