ALBUQUERQUE, N.M. (KRQE) – The state is urging a judge to resentence a former Bernalillo County Sheriff’s deputy found guilty of aggravated battery for beating up a suspect.

An appeal filed by the district attorney’s office states David Priemazon has no business carrying a gun for his job while on probation.

Priemazon was found guilty in October of kicking a chase suspect in the head back in 2018 while deputies had already cuffed him.

Prosecutors requested Priemazon serve three years in prison, but he was given a deferred sentence.

“I believe the defendant would be better able to provide for his family and to be an asset to the community by remaining out of custody,” District Court Judge Daniel Gallegos said at Priemazon’s December sentencing.

It’s not a crime in New Mexico for someone to have a firearm while on probation under a deferred sentence. But, the district attorney’s appeal states that shouldn’t be the case for Priemazon because he’s a convicted felon.

The appeal highlights a condition of Priemazon’s probation that lets him carry a gun for his job as a security guard, stating that federal law would allow him to have a firearm only after the deferment period.

For Priemazon, that would be after 300 hours of community service, anger management and after he pays restitution.

“It’s really sour grapes on the part of the district attorney and that office,” Priemazon’s attorney Sam Bregman said.

Bregman said this appeal would keep his client from making a living.

“What he was convicted of had nothing to do with a gun, so what is their issue here?” Bregman asked. “Especially in light of the fact the judge granted a deferred sentence, especially in light of the fact they had an opportunity to argue against this and the judge heard their arguments and still declined.”

In a statement, the district attorney’s office said Judge Gallegos granted an illegal sentence because it “authorizes the defendant to commit a federal crime.”

Bregman doesn’t buy it.

“If Mr. Priemazon completes the probationary time period, which everyone expects him to do just fine, this case will be dismissed,” Bregman said.

Priemazon’s deferred sentence means his record will be cleared if he completes his community service and other probationary requirements.

Priemazon resigned from the sheriff’s department in December 2018 before he was about to be fired.