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STATE v. BLEA

No. 958.

506 P.2d 339 (1973)

84 N.M. 595

STATE of New Mexico, Plaintiff-Appellee, v. Deluvino BLEA, Defendant-Appellant.

Court of Appeals of New Mexico.

January 26, 1973.

Attorney(s) appearing for the Case

Bill Chappell, Jr., James A. Branch, Jr., Branch & Dickson, Albuquerque, for defendant-appellant.

David L. Norvell, Atty. Gen., Winston Roberts-Hohl, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

HENDLEY, Judge.

Convicted of statutory rape, aggravated battery and battery, defendant appeals asserting that it was error to sentence him pursuant to § 40A-29-3.1(A), N.M.S.A. 1953 (Repl.Vol. 1964, Supp. 1969) because: (1) he was denied the right to be tried by a jury on the issue of using a firearm; and, (2) he was not charged in the indictment with violating the above statute.

Section 40A-29-3.1(A), supra, states:

"When a...

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