State v. Hoover, 73 N.M. 223, 387 P.2d 330 (1963)

Nov. 25, 1963 · Supreme Court of New Mexico · No. 7320

73 N.M. 223, 387 P.2d 330

387 P.2d 330

STATE of New Mexico, Plaintiff-Appellee, v. Jerry HOOVER, Defendant-Appellant.

No. 7320.

Supreme Court of New Mexico.

Nov. 25, 1963.

“Edwin L. Felter, O. Russell Jones, Santa Fe, for appellant. >

Earl E. Hartley, Atty. Gen., Joel M. Carson, Shirley C. Zabel, Asst. Attys. Gen., Santa Fe, for appellee.

NOBLE, Justice.

On May 25, 1962, Jerry Hoover was convicted of second degree murder and séntenced to be confined in the State Penitentiary “for a period of not less than twenty-five nor more than fifty years.” This appeal is from the sentence so imposed.

The applicable statute, § 40-24 — 10, N.M. S.A.1953, provided a penalty of imprisonment “for any period of time not less than three [3] years.” This has been construed as providing a' maximum sentence of life imprisonment. State v. Maestas, 63 N.M. 67, 313 P.2d 337. The indeterminate sentence statute, § 41-17-1, N.M.S.A.1953, requires the court to impose a sentence of the minimum and the maximum provided by law. State v. Romero, N.Mex., 385 P.2d 967.

It follows that the sentence imposed was erroneous. The judgment is reversed and the cause remanded with instructions to vacate the sentence imposed and to resentence the defendant in conformity with this opinion.

It is so ordered.

COMPTON, C. J., and CARMODY, J., concur.