State v. Barreras

OPINION

WOOD, Chief Judge.

Defendant used a firearm in committing aggravated battery. In imposing sentence, the trial court refused to consider suspending defendant’s sentence on the basis that § 40A-29-3.1, N.M.S.A.1953 (2d Repl. Vol. 6) was mandatory. Defendant contends that § 40A-29-3.1, supra, could not be applied in his case. We hold that § 40A-29-3.1, supra, was applicable to defendant’s sentence but that it was misapplied. Accordingly, we remand for further hearing as to whether a part of the sentence should be suspended.

Section 40A-29-3.1, supra, reads:

“When a separate finding of fact…