Certiorari Granted, No. 31,909, September 15, 2009 OPINION {1} The primary issue in this appeal concerns a challenge to the statutory procedure used to determine whether a youthful offender is sentenced as an adult or as a juvenile. Under the Delinquency Act, NMSA 1978, ** 32A-2-1 to -33 (1993, as amended through 2007) (Delinquency Act), the trial court determines whether to impose a juvenile or adult sentence after making findings based on evidence presented at an amenability hearing. Section 32A-2-20(B)(1), (2). In the case before us, the trial court found that Child was not amenable to treatment, and Child was sentenced as an adult to twenty-five years in prison. Child appeals his sentence and urges this Court to overrule State v. Gonzales, 2001-NMCA-025, & 1, 130 N.M. 341, 24 P.3d 776, and urges this Court to hold that Apprendi v. New Jersey, 530 U.S. 466 (2000), requires a jury determination of the facts necessary to impose an adult sentence. Child additionally asserts that there was insufficient evidence to support the findings necessary to sentence him as an adult and that his separate convictions for shooting from a motor vehicle resulting in great bodily harm and aggravated battery with a deadly weapon violate double jeopardy. After considering the line of cases decided since Apprendi and Gonzales, we conclude that Gonzales should be overruled and that Apprendi applies to the amenability hearings of youthful offenders. We need not reach the question of substantial evidence because we remand this case to the trial court for resentencing. We also hold that the resentencing should be based on all of the counts to which Child pleaded because there was no double jeopardy violation. I. BACKGROUND
