2023 New Mexico Statutes › Chapter 31 - Criminal Procedure › Article 21 - Sentence, Pardons and Paroles › Section 31-21-15 - Return of probation violator.

A. At any time during probation:
(1) the court may issue a warrant for the arrest of a probationer for violation of any of the conditions of release. The warrant shall authorize the return of the probationer to the custody of the court or to any suitable detention facility designated by the court;
(2) the court may issue a notice to appear to answer a charge of violation. The notice shall be personally served upon the probationer; or
(3) the director may arrest a probationer without warrant or may deputize any officer with power of arrest to do so by giving the officer a written statement setting forth that the probationer has, in the judgment of the director, violated the conditions of the probationer's release. The written statement, delivered with the probationer by the arresting officer to the official in charge of a county jail or other place of detention, is sufficient warrant for the detention of the probationer. Upon the probationer's arrest and detention, the director shall immediately notify the court and submit in writing a report showing in what manner the probationer has violated the conditions of release.
B. The court shall then hold a hearing, which may be informal, on the violation charged. If the violation is established, the court may continue the original probation or revoke the probation and either order a new probation with any condition provided for in Section 31-20-5 or 31-20-6 NMSA 1978 or require the probationer to serve the balance of the sentence imposed or any lesser sentence. If imposition of sentence was deferred, the court may impose any sentence that might originally have been imposed, but credit shall be given for time served on probation.
C. If it is found that a warrant for the return of a probationer cannot be served, the probationer is a fugitive from justice. After hearing upon return, if it appears that the probationer has violated the provisions of the probationer's release, the court shall determine whether the time from the date of violation to the date of the probationer's arrest, or any part of it, shall be counted as time served on probation. For the purposes of this subsection, "probationer" means a person convicted of a crime by a district, metropolitan, magistrate or municipal court.
D. The board shall budget funds to cover expenses of returning probationers to the court. The sheriff of the county in which the probationer was convicted is the court's agent in the transportation of the probationer, but the director, with the consent of the court, may utilize other state agencies for this purpose when it is in the best interest of the state.
History:
1953 Comp., § 41-17-28.1, enacted by Laws 1963, ch. 301, § 13; 1989, ch. 139, § 1; 2016, ch. 27, § 1; 2016, ch. 31, § 1.
ANNOTATIONS
Cross references.
— For state board of probation and parole referring to corrections division,
see
33-1-7 NMSA 1978.
The 2016 amendment,
effective March 2, 2016, defined "probationer" for purposes of this section; in Subsection A, Paragraph (3), after "by giving", deleted "him" and added "the officer", after "violated the conditions of", deleted "his" and added "probationer's", and after "Upon", added "the probationer's"; in Subsection B, after "any sentence", deleted "which" and added "that"; and in Subsection C, after "if it appears that", deleted "he" and added "the probationer", after "violated the provisions of", deleted "his" and added "the probationer's", after "violation to the date of", deleted "his" and added "the probationer's", and added the last sentence.
Laws 2016, ch. 27, § 1 and Laws 2016, ch. 31, § 1, both effective March 2, 2016, enacted identical amendments to this section. The section was set out as amended by Laws 2016, ch. 31, § 1.
See
12-1-8 NMSA 1978.
The 1989 amendment,
effective June 16, 1989, in Subsection B substituted "continue the original probation, revoke the probation and either order a new probation with any condition provided for in Section 31-20-5 or 31-20-6 NMSA 1978, or" for "continue or revoke the probation and may" in the second sentence.
I. GENERAL CONSIDERATION.
Rule 5-805 NMRA does not violate separation of powers.
— Subsection H of Rule 5-805 NMRA, which requires dismissal of a probation violation proceeding if the time limits to hold an adjudicatory hearing are not met, does not infringe upon the substantive rights granted by the legislature in Sections 31-11-1 and 31-21-15 NMSA 1978 and does not violate the separation of powers doctrine.
State v. Montoya
, 2011-NMCA-009, 149 N.M. 242, 247 P.3d 1127, cert. denied, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.
Legislature has expressly determined procedures
to bring a person on probation before the court for violation of a condition of probation.
State v. Ponce
, 2004-NMCA-137, 136 N.M. 614, 103 P.3d 54, cert. quashed, 2006-NMCERT-004, 139 N.M. 429, 134 P.3d 120.
Generally as to probation.
— Probation is conferred as a privilege and cannot be demanded as a right. It is a matter of favor, not of contract. There is no requirement that it must be granted on a specified showing. The defendant stands convicted; he faces punishment and cannot insist on terms or strike a bargain. He is still a person convicted of an offense, and the suspension of his sentence remains within the control of the court.
State v. Brusenhan
, 1968-NMCA-006, 78 N.M. 764, 438 P.2d 174.
Legislature authorized to define court's jurisdiction over sentencing.
— It is within the power of the legislature alone to define the court's jurisdiction over the sentencing of offenders.
State v. Travarez
, 1983-NMCA-003, 99 N.M. 309, 657 P.2d 636.
Sentencing scheme for suspension and deferment is not unconstitutionally vague.
State v. Kenneman
, 1982-NMCA-145, 98 N.M. 794, 653 P.2d 170, cert. denied, 99 N.M. 47, 653 P.2d 878.
Probation is conditional liberty intended to alleviate aspects of punishment
by incarceration. It offers rehabilitation and restoration to society.
State v. Chavez
, 1979-NMCA-143, 94 N.M. 102, 607 P.2d 640, cert. denied, 94 N.M. 629, 614 P.2d 546.
For probation to be legally effective,
defendant did not have to report to the probation office, open his file, and sign a probation order. Defendant was constructively on probation from the date of his sentencing.
State v. Jimenez
, 2004-NMSC-012, 135 N.M. 442, 90 P.3d 461.
Probation served while in custody of another jurisdiction.
— Where defendant was placed on supervised probation for a term of five years; before defendant was released from custody or had an opportunity to meet with probation officers, defendant was extradited to Texas; Texas dropped the charges against defendant, but continued to hold defendant in custody until defendant was extradited to Colorado; defendant was imprisoned in Colorado for four years based on a probation violation; when defendant finished the Colorado prison term, defendant was extradited to New Mexico and remained in custody until defendant appeared before the district court; defendant was never able to report to New Mexico probation authorities; at a probation violation hearing held after the expiration date of defendant's probationary period, the district court found that defendant had not violated the terms of probation and was not an absconder or a fugitive; and the district court retroactively reinstated defendant's probation during the period of time defendant was incarcerated outside New Mexico, defendant was entitled to credit for probation throughout the time defendant was in custody in Texas and incarcerated in Colorado, the term of defendant's probationary period expired before the district court entered its order, and the district court did not have jurisdiction to reinstate defendant's probation.
State v. Hinojos
, 2014-NMCA-067.
Nolo plea not basis for revocation of probation.
— A court may not use a conviction based on a nolo contendere plea as the sole basis to revoke probation.
State v. Baca
, 1984-NMCA-056, 101 N.M. 415, 683 P.2d 970.
Constitutional to impose three-year sentence when sentencing originally deferred for two years.
— The imposition of a three-year sentence when sentencing was originally deferred for two years does not violate the prohibition on double jeopardy, when the first sentence imposed is where the defendant's probation is revoked.
State v. Kenneman
, 1982-NMCA-145, 98 N.M. 794, 653 P.2d 170, cert. denied, 99 N.M. 47, 653 P.2d 878.
Court lacks jurisdiction in probation revocation matter when period of deferred sentence expires.
— Section 31-20-9 NMSA 1978 relieves the defendant of any obligations imposed on him by order of the court when the period of a deferred sentence expires, and he is deemed then to have satisfied his liability for the crime. The trial court thereafter lacks jurisdiction to proceed in a probation revocation matter.
State v. Travarez
, 1983-NMCA-003, 99 N.M. 309, 657 P.2d 636.
Court may not order defendant to live in halfway house as condition of probation.
— Ordering defendant to live in a halfway house as an additional condition of probation amounts to an increased penalty under
State v. Crespin
, 1981-NMCA-095, 96 N.M. 640, 633 P.2d 1238, and thus the court has no jurisdiction to make such an order.
State v. Chavez
, 1984-NMCA-006, 100 N.M. 750, 676 P.2d 827.
Incarceration for probation violation not required.
— Neither Section 31-20-5 NMSA 1978 nor this section require the trial court to impose incarceration if the defendant violates the conditions of his probation.
State v. Mares
, 1994-NMSC-123, 119 N.M. 48, 888 P.2d 930.
Delay waives probation revocation.
— Where it is contended that the right of New Mexico to revoke defendant's probation was waived by reason of the long delay in apprehending defendant, based on the claim that defendant's whereabouts were known to the state or should have been known to the state had it exercised ordinary care to ascertain the location of defendant, such a claim provides a legal basis for relief.
State v. Murray
, 1970-NMCA-045, 81 N.M. 445, 468 P.2d 416.
Unreasonable delay in arrest results in state's waiver of defendant's violations.
— Unreasonable delay between knowledge of violation and notice or arrest, or between arrest and hearing, resulting in prejudice or oppressive detriment would result, as a matter of law, in the state's waiver of defendant's violations.
State v. Sanchez
, 1980-NMCA-055, 94 N.M. 521, 612 P.2d 1332, cert. denied, 94 N.M. 675, 615 P.2d 992.
Seven-month delay between arrest for probation violation and revocation hearing
is denial of procedural due process.
State v. Chavez
, 1979-NMCA-143, 94 N.M. 102, 607 P.2d 640, cert. denied, 94 N.M. 629, 614 P.2d 546.
Effect on revocation of conviction or acquittal of subsequent offense.
— Conviction of a subsequent offense is not a prerequisite for revocation of probation but if revocation was solely on the basis of the charge of an offense and defendant was thereafter acquitted of the charge, revocation was improper.
Maes v. State
, 1972-NMCA-124, 84 N.M. 251, 501 P.2d 695.
Fixing of penalties is legislative function
and what constitutes an adequate punishment is a matter for legislative judgment.
State v. Sublett
, 1968-NMCA-001, 78 N.M. 655, 436 P.2d 515.
District court abused its discretion by modifying defendant's probation condition
which had been agreed upon pursuant to a plea bargain.
State v. Trujillo
, 1994-NMSC-066, 117 N.M. 769, 877 P.2d 575.
II. HEARING ON REVOCATION.
Confrontation of witnesses.
— The right protected in probation revocations is not the sixth amendment right to confrontation, which is guaranteed every accused in a criminal trial, but rather the more generally worded right to due process of law secured by the fourteenth amendment and a probationer is entitled to confront and cross-examine adverse witnesses unless the hearing officer specifically finds good cause for not allowing confrontation.
State v. Guthrie
, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904,
rev'g
2009-NMCA-036, 145 N.M. 761, 204 P.3d 1271, and
overruling
State v. Phillips, 2006-NMCA-001, 138 N.M. 730, 126 P.3d 546.
The need-for-confrontation analysis in probation revocations is a spectrum that requires the trial court to focus on the relative need for confrontation to protect the truth-finding process and the substantial reliability of the evidence. If the need is significant and the court specifies the reasons why, then the witness must appear and be subject to confrontation, regardless of the reasons for the witness's absence. If the need for confrontation is not significant and the court specifies why, then it does not matter whether the witness is available or not. The end of the spectrum where there is good cause for not requiring confrontation, where live testimony and cross-examination has no utility to the fact-finding process, includes situations in which the state's evidence is uncontested, corroborated by other reliable evidence, and documented by a reliable source without a motive to fabricate and situations where an objective conclusion, a routine recording, or a negative fact, make the demeanor and credibility of the witness less relevant to the truth-finding process. The end of the spectrum where there is no good cause for not requiring confrontation, where the state's failure to produce the witness deprives the defendant of due process, includes situations where evidence is contested by the defendant, unsupported or contradicted, and its source has a motive to fabricate and situations where the evidence is about a subjective, judgment-based observation that is subject to inference and interpretation, and makes a conclusion that is central to the necessary proof that the defendant violated probation.
State v. Guthrie
, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904,
rev'g
2009-NMCA-036, 145 N.M. 761, 204 P.3d 1271, and
overruling
State v. Phillips
, 2006-NMCA-001, 138 N.M. 730, 126 P.3d 546.
Where defendant agreed to attend a residential treatment program as a condition of supervised probation; defendant failed to complete the treatment program; defendant's probation officer, who had filed the probation violation report, was not called to testify at the probation revocation hearing; the probation officer's supervisor, who was called to testify, referred to documents in defendant's probation file, including the probation violation report and a fax from the treatment center, to testify that defendant had not completed the treatment program; the supervisor had no personal knowledge about defendant or about the case, had never spoken to anyone from the treatment center and had not independently investigated the allegations against defendant; defendant did not contest the allegations or offer any evidence in mitigation; the fact of defendant's non-compliance with the condition of probation was established by the written statement from the treatment center; and the trial judge's observation that defendant had been arrested in a county in which there was no residential treatment center corroborated the state's evidence that defendant had violated probation, the district judge had good cause for not allowing defendant to confront and cross-examine defendant's probation officer.
State v. Guthrie
, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904,
rev'g
2009-NMCA-036, 145 N.M. 761, 204 P.3d 1271, and
overruling
State v. Phillips
, 2006-NMCA-001, 138 N.M. 730, 126 P.3d 546.
The right to confront and cross-examine witnesses at probation revocation hearings is guaranteed by the due process clause of the fourteenth amendment, not by the confrontation clause of the sixth amendment.
State v. Guthrie
, 2009-NMCA-036, 145 N.M. 761, 204 P.3d 1271,
rev'd
, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904.
Before revoking a defendant's probation base on hearsay, the district court must make as specific finding of good cause for not requiring confrontation by specifically addressing the state's problems in securing the presence of an absent witness or specifically stating the reasons that the hearsay evidence offered has particular indicia of accuracy and reliability such that it has probative value.
State v. Guthrie
, 2009-NMCA-036, 145 N.M. 761, 204 P.3d 1271,
rev'd
, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904.
Where the defendant's probation officer did not appear at the hearing to revoke the defendant's probation; the only witness who testified at the hearing was the probation officer's supervisor who was the custodian of probation violation reports filed by probation officers; the supervisor had no personal knowledge of the defendant's case except for what was contained the probation officer's file; the supervisor read into evidence statements the were in the defendant's probation file; and the district court did not state reasons why the evidence was sufficiently accurate or reliable so as to excuse the presence of the defendant's probation officer, the district court failed to make a specific finding of good cause for not calling the defendant's probation officer as a witness and the revocation of the defendant's probation based on the supervisor's testimony about statements included in the defendant's file violated the defendant's due process rights.
State v. Guthrie
, 2009-NMCA-036, 145 N.M. 761, 204 P.3d 1271,
rev'd
, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904.
Defendant had a due process right to confront witnesses at his probation revocation hearing.
— Where the state accused defendant of violating his probation by committing a new crime, criminal sexual penetration of his daughter, and where, at defendant's probation revocation hearing, the state presented evidence of statements made by the daughter, witnesses' personal observations of the daughter's demeanor and physical condition after the alleged crime, and evidence of blood and male DNA found on some of the daughter's underwear, but chose not to call defendant's daughter as a witness, and where the district court determined that defendant did not have a right to confront and cross-examine his daughter, and where defendant argued that the district court violated his due process right to confront and cross-examine witnesses at the probation revocation hearing, the district court erred in denying defendant his right to confront and cross-examine his daughter and in revoking his probation, because defendants who face allegations that they have violated their probation have a due process right to confront and cross-examine adverse witnesses unless the court specifically finds good cause for not allowing confrontation, and in this case, the district court did not make factual findings as to whether there was good cause to admit the challenged evidence without allowing defendant to confront his daughter. Moreover, the evidence presented at the probation revocation hearing was not reliable enough to overcome the strong presumption that defendant had a right to confront his daughter about the unadjudicated accusation that he had committed a new crime.
State v. Godinez
, 2022-NMCA-029, cert. granted.
Formal rules of evidence do not apply
to probation revocation hearings.
State v. Phillips
, 2006-NMCA-001, 138 N.M. 730, 126 P.3d 546, cert. quashed, 2006-NMCERT-009, 140 N.M. 543, 144 P.3d 102,
overruled by
State v. Guthrie
, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904.
Where, in a probation revocation hearing,
the real witness against defendant is allowed to testify via another without identification, verification, confrontation, with a complete lack of demonstration or even discussion of good cause for not calling the real witness, defendant's due process rights have been stripped from him and a lack of formality should not excuse a lack of due process.
State v. Phillips
, 2006-NMCA-001, 138 N.M. 730, 126 P.3d 546, cert. quashed, 2006-NMCERT-009, 140 N.M. 543, 144 P.3d 102,
overruled by
State v. Guthrie
, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904.
Due process violation.
— It is impermissible to allow a probation officer to read from documents in a file where it is unclear where, when, or from whom the documents were obtained and there was no factual showing or finding of good cause for not calling the persons who submitted the documents to testify as required by due process.
State v. Phillips
, 2006-NMCA-001, 138 N.M. 730, 126 P.3d 546, cert. quashed, 2006-NMCERT-009, 140 N.M. 543, 144 P.3d 102,
overruled by
State v. Guthrie
, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904.
Degree of proof necessary to establish probation violation.
— At a probation violation hearing, the violation must be established with reasonable certainty. The violation does not have to be established beyond a reasonable doubt.
State v. Murray
, 1970-NMCA-045, 81 N.M. 445, 468 P.2d 416.
Conscience of court to be satisfied.
— A violation of the conditions of probation must be established with such reasonable certainty as to satisfy the conscience of the court of the truth of the violation. If the evidence inclines a reasonable and impartial mind to the belief that the defendant had violated the terms of his probation, it is sufficient.
State v. Brusenhan
, 1968-NMCA-006, 78 N.M. 764, 438 P.2d 174.
Reasonable and impartial mind to be inclined.
— The degree of proof necessary to establish a violation of probation in revocation hearings is that which inclines a reasonable and impartial mind to the belief that defendant had violated the terms of probation, and a reasonable and impartial mind is one which hears before it condemns, which proceeds on inquiry, and only renders a decision after hearing all the evidence.
State v. Pacheco
, 1973-NMCA-155, 85 N.M. 778, 517 P.2d 1304.
Probationer must have opportunity to be heard
and to show, if he can, that he did not violate the conditions of his suspended sentence, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation.
State v. Montoya
, 1979-NMCA-073, 93 N.M. 84, 596 P.2d 527.
Right to allocution in probation revocation hearings.
— A defendant has a right to allocution in probation revocation hearings, because in a probation revocation hearing the district court has a multitude of options in sentencing, all of which have the potential to impact a defendant's liberty interests, and allowing a defendant to address the district court prior to sentencing in a probation revocation hearing allows the defendant to ask for mercy based on factors that might not otherwise be brought to the court's attention and retains the same practical significance as it would in the original sentencing hearing.
State v. Williams
, 2021-NMCA-021, cert. denied.
Where defendant pled guilty to residential burglary, two counts of receiving stolen property, receiving or transferring a stolen motor vehicle, battery upon a peace officer, and larceny, and where the district court suspended defendant's entire sentence and placed him on supervised probation for a total of nine years, the conditions of which required defendant to get permission from his probation officer before leaving the county and not consume illegal drugs, and where several months later, the state filed a petition to revoke defendant's probation, alleging that he failed to adhere to his curfew and used illegal drugs, and where, based on defendant's admission that he used methamphetamine while on probation, the district revoked defendant's probation but failed to advise defendant that he had the right to personally address the court before the court proceeded to disposition, the court denied defendant his right of allocution. It is the duty of the court to inform a defendant of his or her right to allocution, and when the district court does not fulfill this duty, the sentence is invalid.
State v. Williams
, 2021-NMCA-021, cert. denied.
Sufficient evidence that defendant willfully violated the condition of his probation.
— Where defendant pled guilty to residential burglary, two counts of receiving stolen property, receiving or transferring a stolen motor vehicle, battery upon a peace officer, and larceny, and where the district court suspended defendant's entire sentence and placed him on supervised probation for a total of nine years, the conditions of which required defendant to get permission from his probation officer before leaving the county and not consume illegal drugs, and where several months later, the state filed a petition to revoke probation, alleging that defendant failed to adhere to his curfew and used illegal drugs in violation of his conditions of probation, the district court did not abuse its discretion by finding that defendant willfully violated conditions of his probation based on a signed admission form in which defendant admitted that he used methamphetamine on the day that he violated his curfew, and where defendant, at his probation revocation hearing, further admitted to using methamphetamine while on probation.
State v. Williams
, 2021-NMCA-021, cert. denied.
Notice and hearing constitutionally mandated.
— The right of personal liberty is one of the highest rights of citizenship and cannot be taken from a defendant in a probation revocation proceeding without notice and an opportunity to be heard without invading his constitutional rights.
State v. Brusenhan
, 1968-NMCA-006, 78 N.M. 764, 438 P.2d 174.
Hearing on revocation of probation or parole is not trial
on a criminal charge, but is a hearing to determine whether, during the probationary or parole period, the defendant has conformed to or breached the course of conduct outlined in the probation or parole order.
State v. Sanchez
, 1980-NMCA-055, 94 N.M. 521, 612 P.2d 1332, cert. denied, 94 N.M. 675, 615 P.2d 992.
Formal trial not required.
— Where defendant claimed that neither the judge nor his counsel advised him of his right to a "trial" on whether he had violated the conditions of his probation, it was held that he was not entitled to a trial in any strict or formal sense. He was entitled to a hearing on the alleged violations, but that hearing could be informal.
State v. Murray
, 1970-NMCA-045, 81 N.M. 445, 468 P.2d 416.
Hearing to revoke probation may be informal.
— This does not mean that he may insist upon a trial in any strict or formal sense.
State v. Brusenhan
, 1968-NMCA-006, 78 N.M. 764, 438 P.2d 174.
Probation revocation proceedings are by nature informal.
State v. Phillips
, 2006-NMCA-001, 138 N.M. 730, 126 P.3d 546, cert. granted, 2006-NMCERT-001, 139 N.M. 272, 131 P.3d 659,
overruled by
State v. Guthrie
, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904.
Testimony not coerced.
— Where defendant at probation revocation hearing was not called or sworn as a witness, but was advised by the court as to the nature of each charge made against him and was asked whether or not the charge was true, and thereby was given an opportunity to admit or deny the charge, and where he was also given an opportunity to explain his plea to each charge, and in some instances he offered an explanation, this did not constitute compelled, coerced or required testimony by defendant against himself. These proceedings were in the nature of an arraignment.
State v. Brusenhan
, 1968-NMCA-006, 78 N.M. 764, 438 P.2d 174.
Competence of counsel.
— The competence of court-appointed counsel at probation revocation hearings could not be determined by the amount of time he spent or failed to spend with the accused. The failure of an attorney to confer with his client, without more, could not establish the incompetence of that attorney.
State v. Brusenhan
, 1968-NMCA-006, 78 N.M. 764, 438 P.2d 174.
When effective use of counsel denied.
— Probation revocation hearing must have constituted a sham, a farce or a mockery of justice before a defendant can be said to have been denied the effective assistance of counsel.
State v. Brusenhan
, 1968-NMCA-006, 78 N.M. 764, 438 P.2d 174.
Right to jury trial on identity.
— Defendant has a right to a jury trial on the question of his identity.
State v. Murray
, 1970-NMCA-045, 81 N.M. 445, 468 P.2d 416.
When jury trial waived.
— Having failed to raise the question of want of identity defendant waives his right to a trial by jury on that issue at his probation revocation proceeding.
State v. Paul
, 1971-NMCA-107, 82 N.M. 791, 487 P.2d 493.
Revocation hearing by court granting probation constitutional if held immediately after probationer notified.
— A hearing for revocation of probation by a court which granted probation will satisfy due process if the hearing is held immediately after a notice to appear to answer a charge of violation is personally served upon a probationer.
State v. Chavez
, 1979-NMCA-143, 94 N.M. 102, 607 P.2d 640, cert. denied, 94 N.M. 629, 614 P.2d 546.
Evidentiary hearing required where arrest delayed.
— Defendant is entitled to an evidentiary hearing on the question of whether there was an unreasonable delay in executing the arrest warrants where the record indicates the probation authorities promptly had a warrant issued on the basis of the probation violations, but nothing is indicated of their attempts to execute the warrants for defendant's arrest.
State v. Murray
, 1970-NMCA-045, 81 N.M. 445, 468 P.2d 416.
III. REVOCATION.
Evidentiary standard.
— In a probation revocation, the evidentiary standard is that the violation must be established with a reasonable certainty, such that a reasonable and impartial mind would believe that the defendant violated the terms of probation.
State v. Green
, 2015-NMCA-007, cert. denied, 2014-NMCERT-012.
Violation of sex offender behavior contract.
— Where defendant was required, as a condition of his probation, to comply with a sex offender behavior contract as a result of his conviction for kidnapping which involved criminal sexual contact with the victim, the district court did not err in finding that defendant violated the sex offender behavior contract when defendant was found with sexually oriented material on his computer.
State v. Green
, 2015-NMCA-007, cert. denied, 2014-NMCERT-012.
A court's decision to revoke a defendant's probation is discretionary.
— In exercising its discretion to revoke a defendant's probation, a court may consider that the purpose of probation is the rehabilitation of the defendant. A court has the authority to revoke probation for a probation violation when rehabilitation is not occurring.
State v. Dinapoli
, 2015-NMCA-066, cert. denied, 2015-NMCERT-006.
Where defendant's probation was revoked for possessing sexually explicit materials in violation of his sex offender contract, defendant claimed that the district court improperly revoked his probation because he did not have sufficient notice that his possession of popular, mainstream R-rated movies would be in violation of the terms of his probation; the district court did not err in finding that defendant had sufficient notice that the materials he possessed were a violation of the terms of his probation where the DVD covers stated that the movies contained violent content, including rape and torture, strong sexuality, and graphic nudity as well as sexual abuse; a reasonable person would be on notice of the sexually oriented material in the DVDs; moreover, defendant was aware, based on a previous probation revocation, that possession of sexually oriented or sexually stimulating material was prohibited by the sex offender contract even if it were not considered pornographic. The district court did not err in revoking defendant's probation.
State v. Dinapoli
, 2015-NMCA-066, cert. denied, 2015-NMCERT-006.
Violating the terms of sex offender contract.
— Probation is a criminal sanction, and the district court may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens. The purposes of probation are to both prevent an offender from engaging in additional criminal activity and to rehabilitate the offender. The restrictions of the sex offender contract further these purpose by limiting a defendant's access to materials that may reasonably lead to susceptibility of other criminal acts or impede rehabilitation.
State v. Dinapoli
, 2015-NMCA-066, cert. denied, 2015-NMCERT-006.
Where defendant's probation was revoked for possessing sexually explicit materials in violation of his sex offender contract, defendant claimed that the district court improperly revoked his probation because he did not have sufficient notice that his possession of popular, mainstream R-rated movies would be in violation of the terms of his probation; the issue was not whether the movies, taken as a whole, would not be considered "sexually oriented", the issue was whether the movies contained sexually oriented material that would undermine the purposes of defendant's probation.
State v. Dinapoli
, 2015-NMCA-066, cert. denied, 2015-NMCERT-006.
Revocation of probation before sentence is served.
— After the court has entered an order of probation and before the full suspended sentence has expired, the court has the authority to revoke probation regardless of whether the probationary term has commenced or whether the defendant is serving a portion of the underlying sentence.
State v. Lopez
, 2007-NMSC-011, 141 N.M. 293, 154 P.3d 668.
Probation violation options of court.
— Three courses (now four) are open to the trial court upon the establishment of a violation of the terms or conditions of probation, and these courses are: (1) the court may continue the probation; (2) the court may revoke the probation and require the defendant to serve the balance of the sentence previously imposed; or (3) the court may revoke the probation and require the defendant to serve a sentence which is less than the balance of the sentence previously imposed.
State v. Reinhart
, 1968-NMSC-059, 79 N.M. 36, 439 P.2d 554.
Defendant's failure to rebut the state's prima facie case that defendant willfully violated his probation.
— Where defendant, who was on probation, was told by his probation officer on multiple occasions to find and complete an outpatient drug treatment program, and where defendant never enrolled or participated in programs suggested by his probation officer or any other outpatient drug treatment program, the district court did not abuse its discretion in finding that defendant's failure to enter and complete treatment constituted a probation violation, because defendant did not present any evidence at the hearing to rebut the reasonable inference set forth by the probation officer's testimony that defendant's non-compliance was willful.
State v. Aslin
, 2018-NMCA-043, cert. granted.
Technical violation program.
— Where defendant, while on probation, opted into a technical violation program (TVP) where a probationer who commits a technical violation of his or her order of probation could waive the right to due process procedures as provided by Rule 5-805 NMRA and would instead be sanctioned based on a progressive disciplinary scheme, and where the district court found that defendant violated his conditions of probation by failing to enroll in treatment as ordered by his probation officer, the district court erred in revoking defendant's probation based on the court's finding that the violation was not a mere technical violation under the TVP, because there was no finding below that defendant committed a new violation of state law, and Rule 5-805(C)(3) clearly and unambiguously defines a "technical violation" as any violation that does not involve new criminal charges.
State v. Aslin
, 2018-NMCA-043, cert. granted.
Section provides alternatives.
— Subsection B of this section presents a district court with several alternatives for dealing with a defendant who has violated the conditions of his or her release.
State v. Baca
, 2005-NMCA-001, 136 N.M. 667, 104 P.3d 533, cert. denied, 2004-NMCERT-012, 136 N.M. 665, 103 P.3d 1097.
Revocation of probation where defendant unable to pay fine or restitution.
— There are substantive limits on the automatic revocation of probation where an indigent defendant is unable to pay a fine or restitution. Those substantive limits require that: (1) There must be an inquiry into the reasons for the failure to pay; (2) if the reasons for defendant's failure to pay are either not willful or indicate an inability to pay, the court must consider alternatives to incarceration; and (3) only if alternative measures do not meet the state's interests, then the court may order confinement.
State v. Parsons
, 1986-NMCA-027, 104 N.M. 123, 717 P.2d 99.
Court cannot defer credit for probation time.
— All time served on probation shall be credited (unless a defendant is a fugitive) and the trial court thus errs in purporting to defer credit for time served on probation.
State v. Encinias
, 1986-NMCA-049, 104 N.M. 740, 726 P.2d 1174, cert. denied, 104 N.M. 632, 725 P.2d 832.
Probation condition may be changed upon violation, but not to increase penalty.
— When a violation of probation is established, the trial court may relieve a defendant of the conditions of probation or continue the existing conditions, but the trial court may not change any probation condition so that the penalty is increased, even if the defendant is agreeable to such change.
State v. Crespin
, 1981-NMCA-095, 96 N.M. 640, 633 P.2d 1238.
Imposition of additional sanctions authorized.
— This section does not foreclose the imposition of additional otherwise permissible sanctions for the acts that form the basis for revocation or modification of probation and, in appropriate circumstances, the state had authority to seek enhancement of a defendant's sentence under the habitual-offender statute.
State v. Freed
, 1996-NMCA-044, 121 N.M. 562, 915 P.2d 325, cert. denied, 121 N.M. 644, 916 P.2d 844.
Revocation of only one of several concurrent suspended sentences.
— When a defendant is sentenced to multiple concurrent sentences, the trial court suspends the sentences and places the defendant on probation and the defendant violates the terms of his probation, the trial court cannot invoke the original sentence on count I only and provide that probation would continue on the other counts. The effect of applying revocation to one count only and reserving probation on the remaining counts for possible imposition of imprisonment on any or all of the remaining counts upon future violations is to change an original valid concurrent sentence into consecutive sentences. That effect, of course, creates an increase in penalty and violates the constitutional prohibition against double jeopardy.
State v. Martinez
, 1982-NMCA-185, 99 N.M. 248, 656 P.2d 911.
All time served on probation shall be credited
unless defendant is a fugitive.
State v. Kenneman
, 1982-NMCA-145, 98 N.M. 794, 653 P.2d 170, cert. denied, 99 N.M. 47, 653 P.2d 878.
Time served shall be credited.
— Language in this section unambiguously mandates credit for time served on probation in the case of a defendant whose initial sentence was deferred.
State v. Leslie
, 2004-NMCA-106, 136 N.M. 244, 96 P.3d 805.
Subsection B of this section mandates credit for time served, the only exception being where a defendant is a "fugitive from justice" as defined in Subsection C of this section.
State v. Leslie
, 2004-NMCA-106, 136 N.M. 244, 96 P.3d 805.
Person eligible to receive conditional discharge.
— Although Subsection B of this section refers only to a deferred sentence and not to a conditional discharge, a person who is eligible to receive a conditional discharge is by definition one who is entitled to a deferred sentence.
State v. Leslie
, 2004-NMCA-106, 136 N.M. 244, 96 P.3d 805.
Revocation of probation and suspended sentence compared.
— A violation of the conditions of the probation during the probationary period was also a violation of the conditions of the suspension, because probation was merely the status of one released under a suspended sentence. Therefore, there was no difference between proceedings to revoke a suspended sentence under 40A-29-20, 1953 Comp. (repealed) and proceedings to revoke an order of probation under this section.
State v. Holland
, 1967-NMSC-186, 78 N.M. 324, 431 P.2d 57.
Scope of language of suspension.
— In order to avoid the contention that the conditions of the order of suspension do not embrace the conditions and terms of probation, the trial courts, by appropriate language, should expressly provide that the conditions and terms of probation are made conditions and terms of the suspension.
State v. Holland
, 1967-NMSC-186, 78 N.M. 324, 431 P.2d 57.
Effect of post-conviction relief on improper probation revocation.
— There being nothing in the record indicating that being with a minor after curfew hours was a violation of the conditions of probation, the trial court could not properly rule that defendant was not entitled to post-conviction relief under any state of facts provable under his claim that his probation was revoked because he was with a minor after curfew hours.
Maes v. State
, 1972-NMCA-124, 84 N.M. 251, 501 P.2d 695.
Credit if probation and suspended sentence.
— Where defendant was released without imprisonment under a suspended sentence and subject to conditions, and at the time of release, defendant was on "probation" as that word is used in the Probation and Parole Act, defendant was entitled to credit for probation time served while his sentence was suspended.
State v. Sublett
, 1968-NMCA-001, 78 N.M. 655, 436 P.2d 515.
Discretion of court as to credit.
— Under Subsection B of this section, upon revocation of a suspended sentence, the trial court may require the defendant to serve (1) the balance of the sentence imposed - that is, the term remaining after giving credit for allowable probation time or (2) a lesser term. The trial court does not have authority under this statute to withhold credit for allowable probation time.
State v. Sublett
, 1968-NMCA-001, 78 N.M. 655, 436 P.2d 515.
Meaning of "balance".
— The word "balance" in the statute means "remainder", or that portion of the term of the sentence which remains after deducting therefrom the time during which defendant has been on probation.
State v. Reinhart
, 1968-NMSC-059, 79 N.M. 36, 439 P.2d 554.
Minimum requirement of court.
— Under Subsection B of this section trial court must, as a minimum, credit allowable probation time on the original sentence that has been invoked.
State v. Sublett
, 1968-NMCA-001, 78 N.M. 655, 436 P.2d 515.
IV. FUGITIVE STATUS.
Proof of fugitive status.
— To support a finding of fugitive status, the state must prove that it issued a warrant for the probationer's arrest and entered it into the national crime information center database and that the state unsuccessfully attempted to serve the warrant on the defendant or that any attempt to serve the defendant would have been futile.
State v. Neal
, 2007-NMCA-086, 142 N.M. 487, 167 P.3d 935.
Legislative intent.
— In enacting Subsection C of this statute, the legislature intended to ensure that probationers could not defeat the trial court's authority to revoke probation by absconding from the jurisdiction.
State v. Apache
, 1986-NMCA-051, 104 N.M. 290, 720 P.2d 709, cert. denied, 104 N.M. 289, 720 P.2d 708.
Determination of fugitive status after expiration of probationary term.
— Section 31-21-15(C) NMSA 1978 allows a court to exercise jurisdiction over a probationer after the expiration of the probationary term for the limited purpose of determining fugitive status even when a fugitive defendant is returned to New Mexico prior to the expiration of the original probationary term.
State v. Sosa
, 2014-NMCA-091, cert. denied, 2014-NMCERT-008.
Where defendant's sentence was suspended and defendant was placed on five years of supervised probation; defendant failed to report to a probation officer on October 20, 2010; the state sought to revoke defendant's probation on the ground that defendant was a fugitive; defendant was arrested in Georgia and returned to New Mexico on August 4, 2011; the hearing to revoke defendant's probation was held on August 1, 2012; defendant claimed that the district court lost jurisdiction to revoke defendant's probation on December 23, 2011 when defendant's original probationary term expired; the district court found that the state was diligent in its efforts to serve a warrant on defendant and that defendant was a fugitive from October 20, 2010 to August 4, 2011; and the district court did not err in determining that defendant had been a fugitive for a portion of defendant's probationary term, in tolling the probationary term for the time defendant was a fugitive and thereby extending its jurisdiction over defendant, and in determining that it had jurisdiction on August 1, 2012 to revoke defendant's probation.
State v. Sosa
, 2014-NMCA-091, cert. denied, 2014-NMCERT-008.
Courts of limited jurisdiction have power to revoke probation if a defendant's original probationary period expires while the defendant is an absconder.
— Where defendant was convicted of battery in magistrate court, received a suspended sentence, placed on probation in lieu of serving a prison sentence, violated the terms of his probation and could not be located to answer for this violation until after the period of his suspended sentence expired, this section does not empower courts of limited jurisdiction to toll the running of a probationary period, but 31-20-8 NMSA 1978 does not deprive a trial court of the power to revoke probation when, at the time the defendant's probationary term expired, the defendant had allegedly violated the terms of probation and the court subsequently issued a bench warrant.
State v. Begay
, 2017-NMSC-009,
rev'g
2016-NMCA-039.
Tolling provision does not apply to persons convicted in magistrate court.
— Where defendant was convicted of battery in magistrate court, received a suspended sentence, placed on probation in lieu of serving a prison sentence, violated the terms of his probation and could not be located to answer for this violation until after the period of his suspended sentence expired, the district court erred in determining that this section permitted it to toll the running of defendant's sentence and in revoking defendant's probation, because the legislature expressly limited the application of the tolling provision to adult persons convicted of crimes in the district court.
State v. Begay
, 2016-NMCA-039, cert. granted.
Extradition not required.
— The state was not required to extradite defendant from Arizona so as to prevent his classification as a fugitive under this section and the resulting revocation of probation.
State v. McDonald
, 1991-NMCA-132, 113 N.M. 305, 825 P.2d 238, cert. denied, 113 N.M. 44, 822 P.2d 1127.
When fugitive status determined.
— It is implicit in this statute that the judicial determination of fugitive status shall be made only after the probationer has been found and brought before the court, regardless of whether this occurs before or after the date on which probation was originally to have expired.
State v. Apache
, 1986-NMCA-051, 104 N.M. 290, 720 P.2d 709, cert. denied, 104 N.M. 289, 720 P.2d 708.
Inadequate notice of status.
— Where at the probation revocation hearing, the state requested that the court find that defendant violated his probation, find him to be an absconder, and impose the sentence authorized by law, the state's use of the word "absconder" referring to defendant's failure to report for probation in the two probation violation reports filed, failed to provide adequate notice to defendant that he may be found a fugitive and denied credit pursuant to Subsection C of this section.
State v. Jimenez
, 2004-NMSC-012, 135 N.M. 442, 90 P.3d 461.
Attempt to serve warrant.
— To establish that probationer is "fugitive" under this provision, the state is required, at a minimum, to show that it attempted to serve a warrant on probationer but was unable to or that it would have failed to serve the warrant if it had attempted to do so.
State v. Thomas
, 1991-NMCA-131, 113 N.M. 298, 825 P.2d 231, cert. denied, 113 N.M. 44, 822 P.2d 1127.
Lack of evidence that authorities actually attempted to serve a warrant does not amount to a failure of proof under Subsection C of this statute which requires a finding that the arrest warrant "cannot be served."
State v. Apache
, 1986-NMCA-051, 104 N.M. 290, 720 P.2d 709, cert. denied, 104 N.M. 289, 720 P.2d 708.
Effect of fugitive status on credit.
— The trial court's discretion to credit or disallow probation time from violation of probation to arrest depends upon defendant being a fugitive from justice. Whether defendant was a fugitive requires a determination that the warrant for the return of defendant cannot be served. Where the trial court may have made a judicial determination of the above matters in fixing the credit to be given on the reinstated sentence, but the record does not reflect such a determination, since the question of allowable credit is cognizable in a post-conviction motion, defendant is entitled to an evidentiary hearing on the question of the propriety of the credit given.
State v. Murray
, 1970-NMCA-045, 81 N.M. 445, 468 P.2d 416.
Evidence.
— There was sufficient evidence to support the trial court's ruling that defendant was not entitled to credit for all of the time he was found to have been a fugitive.
State v. Apache
, 1986-NMCA-051, 104 N.M. 290, 720 P.2d 709 (Ct. App.), cert. denied, 104 N.M. 289, 720 P.2d 708.
Where the state made no showing that the warrant was entered into the national crime information center database, that it attempted to serve defendant with a warrant, or that any attempt to serve defendant would have been futile, evidence in the record does not sufficiently demonstrate that defendant was a fugitive under Subsection C of this section.
State v. Jimenez
, 2004-NMSC-012, 135 N.M. 442, 90 P.3d 461.
Failure to object to status did not preclude appeal.
— Where the petition to revoke defendant's parole did not mention Subsection C of this section or allege that defendant was a fugitive, defendant could not have known that his status as a fugitive was at issue until the district court filed its order revoking probation and denying defendant credit for time served on probation. Under these circumstances, defendant had no opportunity to object to the court's ruling at the time it was made, and thus, the failure to object does not prejudice his ability to raise this claim on appeal.
State v. Jimenez
, 2004-NMSC-012, 135 N.M. 442, 90 P.3d 461.
Fugitive defendant incarcerated in another jurisdiction.
— A defendant is a fugitive within the meaning of this section if he cannot be taken into actual custody and brought before the court pursuant to an arrest warrant. Thus defendant who could not be taken into custody under authority of the warrant because he was incarcerated in Arizona was properly denied credit against his sentence.
State v. McDonald
, 1991-NMCA-132, 113 N.M. 305, 825 P.2d 238, cert. denied, 113 N.M. 44, 822 P.2d 1127.
Constitutionality of section.
— This section does not provide for mandatory notice to the probationer before revocation of his probation, thus creating a question of constitutionality. 1964 Op. Att'y Gen. No. 64-106.
Legislative intent.
— The legislature intended the Probation and Parole Act to be read along with the criminal code provisions concerning revocation of probation. 1964 Op. Att'y Gen. No. 64-106.
Scope of arrest options.
— In revoking an order suspending sentence, an arrest may be accomplished in one of the four following ways: the district court which placed the defendant on probation may issue a warrant upon the filing of a petition by the district attorney; the district court which placed the defendant on probation may issue a notice to appear to answer a charge of violation brought by the probation office; the director of the probation and parole board may arrest the probationer without warrant; and a written statement issued by the director may be used as a warrant for arrest by an officer deputized by the director. 1964 Op. Att'y Gen. No. 64-106.
Arrest without warrant by director restricted.
— The procedure whereby the director makes an arrest without a warrant probably should not be utilized when arresting suspected probation violators who are not presently within the jurisdiction of the court which granted probation. 1964 Op. Att'y Gen. No. 64-106.
Revocation hearing part of original order.
— The hearing on revocation authorized by this section is a continuation of the original probation order. 1965 Op. Att'y Gen. No. 65-213.
Commitment under suspended sentence.
— A defendant may not be committed under a suspended sentence until he is given notice of the alleged violation of his probation and has had an opportunity to be heard; to deny either of these is to violate due process of law. 1964 Op. Att'y Gen. No. 64-106.
Effect of probation grant.
— Although the granting of probation is a matter of grace, once it has been granted the probationer has a vested right to his conditional liberty and he may not be deprived of this right without due process of law. 1964 Op. Att'y Gen. No. 64-106.
Procedure where subsequent criminal charge in another jurisdiction.
— Where a defendant is being held on a subsequent criminal charge in a jurisdiction other than the one which placed him on probation, the board should delay proceeding against him for violation of probation until the subsequent charge is disposed of. 1964 Op. Att'y Gen. No. 64-106.
Bail allowed if violation not criminal offense.
— If a violation of probation is not a criminal offense the defendant should be allowed bail. 1964 Op. Att'y Gen. No. 64-106.
Bail where arrested in other county.
— A probationer, arrested in a county other than the county which granted him probation, has a right to be admitted to bail in the county in which he is arrested. 1964 Op. Att'y Gen. No. 64-106.
Board to pay expenses of returning probationers.
— The state board of probation and parole is responsible for the payment of expenses incurred in the returning of probation violators to the court. 1969 Op. Att'y Gen. No. 69-30.
Limitation on expenses.
— The phrase "expenses of returning probationers" is not meant to include the cost of detention prior to the return. 1970 Op. Att'y Gen. No. 70-62.
Law reviews.
— For note, "Due Process, Equal Protection and the New Mexico Parole System," see 2 N.M.L. Rev. 234 (1972).
For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976).
For article, "Survey of New Mexico Law, 1979-80: Criminal Law and Procedure," see 11 N.M.L. Rev. 85 (1981).
For annual survey of New Mexico criminal law, see 16 N.M.L. Rev. 9 (1986).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 21 Am. Jur. 2d Criminal Law § 913 et seq.
Right of defendant sentenced after revocation of probation to credit for jail time served as condition of probation, 99 A.L.R.3d 781.
Immunity of public officer from liability for injuries caused by negligently released individual, 5 A.L.R.4th 773.
Admissibility of hearsay evidence in probation revocation hearings, 11 A.L.R.4th 999.
Power of court, after expiration of probation term, to revoke or modify probation for violations committed during the probation term, 13 A.L.R.4th 1240.
Power of court to revoke probation for acts committed after imposition of sentence but prior to commencement of probation term, 22 A.L.R.4th 755.
Propriety of increased sentence following revocation of probation, 23 A.L.R.4th 883.
Defendant's right to credit for time spent in halfway house, rehabilitation center, or other restrictive environment as condition of probation, 24 A.L.R.4th 789.
Revocation of probation based on defendant's misrepresentation or concealment of information from trial court, 36 A.L.R.4th 1182.
Probation officer's liability for negligent supervision of probationer, 44 A.L.R.4th 638.
Probation revocation: insanity as defense, 56 A.L.R.4th 1178.
Determination that state failed to prove charges relied upon for revocation of probation as barring subsequent criminal action based on same underlying charges, 2 A.L.R.5th 262.
Who may institute proceedings to revoke probation, 21 A.L.R.5th 275.
Validity, construction, and application of concurrent-sentence doctrine - state cases, 56 A.L.R.5th 385.
24 C.J.S. Criminal Law §§ 1562 to 1564.