2023 New Mexico Statutes › Chapter 31 - Criminal Procedure › Article 20 - Sentencing › Section 31-20-6 - Conditions of order deferring or suspending sentence.

The magistrate, metropolitan or district court shall attach to its order deferring or suspending sentence reasonable conditions as it may deem necessary to ensure that the defendant will observe the laws of the United States and the various states and the ordinances of any municipality. The defendant upon conviction shall be required to reimburse a law enforcement agency or local crime stopper program for the amount of any reward paid by the agency or program for information leading to the defendant's arrest, prosecution or conviction, but in no event shall reimbursement to the crime stopper program preempt restitution to victims pursuant to the provisions of Section 31-17-1 NMSA l978. The defendant upon conviction shall be required to pay the actual costs of the defendant's supervised probation service to the adult probation and parole division of the corrections department or appropriate responsible agency for deposit to the corrections department intensive supervision fund not exceeding one thousand eight hundred dollars ($1,800) annually to be paid in monthly installments of not less than twenty-five dollars ($25.00) and not more than one hundred fifty dollars ($150), as set by the appropriate district supervisor of the adult probation and parole division, based upon the financial circumstances of the defendant. The defendant's payment of the supervised probation costs shall not be waived unless the court holds an evidentiary hearing and finds that the defendant is unable to pay the costs. If the court waives the defendant's payment of the supervised probation costs and the defendant's financial circumstances subsequently change so that the defendant is able to pay the costs, the appropriate district supervisor of the adult probation and parole division shall advise the court and the court shall hold an evidentiary hearing to determine whether the waiver should be rescinded. The court may also require the defendant to:
A. provide for the support of persons for whose support the defendant is legally responsible;
B. undergo available medical or psychiatric treatment and enter and remain in a specified institution when required for that purpose;
C. be placed on probation under the supervision, guidance or direction of the adult probation and parole division for a term not to exceed five years;
D. serve a period of time in volunteer labor to be known as "community service". The type of labor and period of service shall be at the sole discretion of the court; provided that a person receiving community service shall be immune from any civil liability other than gross negligence arising out of the community service, and a person who performs community service pursuant to court order or a criminal diversion program shall not be entitled to wages, shall not be considered an employee and shall not be entitled to workers' compensation, unemployment benefits or any other benefits otherwise provided by law. As used in this subsection, "community service" means labor that benefits the public at large or a public, charitable or educational entity or institution;
E. make a contribution of not less than ten dollars ($10.00) and not more than one hundred dollars ($100), to be paid in monthly installments of not less than five dollars ($5.00), to a local crime stopper program, a local domestic violence prevention or treatment program or a local drug abuse resistance education program that operates in the territorial jurisdiction of the court; and
F. satisfy any other conditions reasonably related to the defendant's rehabilitation.
History:
1953 Comp., § 40A-29-18, enacted by Laws 1963, ch. 303, § 29-18; and recompiled as 1953 Comp., § 40A-29-42, by Laws 1977, ch. 216, § 16; 1977, ch. 217, § 1; 1981, ch. 285, § 2; 1983, ch. 159, § 1; 1984, ch. 106, § 3; 1985, ch. 23, § 15; 1985, ch. 75, § 2; 1987, ch. 139, § 2; 1988, ch. 62, § 1; 1997, ch. 215, § 1; 2004, ch. 38, § 1; 2007, ch. 101, § 1.
ANNOTATIONS
Cross references.
— For Crime Victims Reparation Act,
see
31-22-1 NMSA 1978.
The 2007 amendment,
effective June 15, 2007, added local domestic violence prevention or treatment programs to the list of optional contributions the court may require a defendant to make as a condition of a deferred or suspended sentence.
The 2004 amendment,
effective July 1, 2004, amended the first paragraph to change one thousand twenty dollars ($1,020) to one thousand eight hundred dollars ($1,800), fifteen dollars ($15.00) to twenty-five dollars ($25.00), eighty-five dollars ($85.00) to one hundred fifty dollars ($150), delete "or the local supervisor of the responsible agency on the basis of changed financial circumstances, as may be required" and insert in its place: "based upon the financial circumstances of the defendant. The defendant's payment of the supervised probation costs shall not be waived unless the court holds an evidentiary hearing and finds that the defendant is unable to pay the costs. If the court waives the defendant's payment of the supervised probation costs and the defendant's financial circumstances subsequently change so that the defendant is able to pay the costs, the appropriate district supervisor of the adult probation and parole division shall advise the court and the court shall hold an evidentiary hearing to determine whether the waiver should be rescinded. The court may also require the defendant to:" and amended Subsection E to delete "If there is no program in that area, the contribution shall be made to the crime stoppers commission".
The 1997 amendment,
effective June 20, 1997, substituted "adult probation and parole division" for "field services division" twice in the third sentence of the introductory paragraph and in Subsection C, and substituted "crime stopper program or a local drug abuse resistance education program that operates in the territorial jurisdiction of the court" for "crime stopper program that operates in the territorial jurisdiction of the court and is approved by the crime stoppers commission" at the end of the first sentence in Subsection E.
Legislative intent.
— Legislature clearly intended in Section 31-20-5 NMSA 1978 to give the sentencing judge authority to withhold the imposition of probation upon suspending a sentence. Probation was not "automatic" where defendant's sentence was suspended and this is further buttressed by the permissive language of this section.
State v. Soria
, 1971-NMCA-042, 82 N.M. 509, 484 P.2d 351.
It is solely within province of legislature to establish penalties for criminal behavior.
State v. Lack
, 1982-NMCA-111, 98 N.M. 500, 650 P.2d 22, cert. denied, 98 N.M. 478, 649 P.2d 1391.
Difference between suspension and deferral
is that suspension involves a sentence imposed while deferral does not. With suspension, the sentence having been imposed, the court cannot later alter the sentence upwards. With deferral, no sentence having been imposed, the court may give any sentence it could originally have given.
State v. Kenneman
, 1982-NMCA-145, 98 N.M. 794, 653 P.2d 170, cert. denied, 99 N.M. 47, 653 P.2d 878.
General purposes of probation
are education and rehabilitation, without the requirement of serving the suspended period of incarceration. Probation is not meant to be painless.
State v. Donaldson
, 1983-NMCA-064, 100 N.M. 111, 666 P.2d 1258, cert. denied, 100 N.M. 53, 665 P.2d 809.
Policy for probation.
— In placing a criminal under strict conditions of probation and under probation supervision, the policy of the State of New Mexico and the obligation of the courts of New Mexico are to place guarded trust in the probationer to consciously conduct himself in a manner to prove he can remain free from criminal activity.
State v. Baca
, 2004-NMCA-049, 135 N.M. 490, 90 P.3d 509.
Supervised probation authorized.
— A New Mexico district court has statutory authority to place a convicted defendant on supervised probation.
State v. Baca
, 2004-NMCA-049, 135 N.M. 490, 90 P.3d 509.
Deferred or suspended sentence always entails mandatory probation
with conditions attached.
State v. Leslie
, 2004-NMCA-106, 136 N.M. 244, 96 P.3d 805.
Section 31-20-13 A NMSA 1978 expressly incorporates probation statutes
that apply to a person serving a deferred sentence.
State v. Leslie
, 2004-NMCA-106, 136 N.M. 244, 96 P.3d 805.
Standards for assessing conditions of probation.
— The trial court, at the time of sentencing, is allowed to consider a wide range of options to assure defendant's rehabilitation, and the conditions of probation will not be set aside unless they: (1) have no reasonable relation to the offense for which the defendant was convicted; (2) relate to activity which is not itself criminal in nature; and (3) require or forbid conduct which is not reasonably related to deterring future criminality.
State v. Taylor
, 1986-NMCA-011, 104 N.M. 88, 717 P.2d 64, cert. denied, 104 N.M. 237, 719 P.2d 815.
Requiring the defendant to execute promissory notes
to the victims of his fraud and embezzlement was reasonably related to his rehabilitation and was a proper condition of his probation.
State v. Jensen
, 1998-NMCA-034, 124 N.M. 726, 955 P.2d 195.
Guidelines for review of imposition of probation.
— A trial court has broad discretion in imposing probation upon a convicted defendant, and the court's discretion will not be set aside on review unless the terms and conditions of probation: (1) have no reasonable relationship to the offense for which defendant was convicted; (2) relate to activity which is not itself criminal in nature; and (3) require or forbid conduct which is not reasonably related to deterring future criminality.
State v. Donaldson
, 1983-NMCA-064, 100 N.M. 111, 666 P.2d 1258, cert. denied, 100 N.M. 53, 665 P.2d 809.
Probation is a discretionary act of the sentencing court.
— New Mexico law places squarely within the purview of the district court the authority to order a defendant to satisfy any other conditions reasonably related to rehabilitation, and such order is reviewed on appeal only for an abuse of discretion.
State v. Green
, 2015-NMCA-007, cert. denied, 2014-NMCERT-012.
Abuse of discretion.
— Under the abuse of discretion standard of appellate review, conditions of probation will not be set aside unless they have no reasonable relationship to the offense for which the defendant was convicted, relate to activity which is not itself criminal in nature, and require or forbid conduct which is not reasonably related to deferring future criminality.
State v. Green
, 2015-NMCA-007, cert. denied, 2014-NMCERT-012.
District court order may incorporate conditions of probation.
— Where a district court's order generally states that a defendant must comply with reasonable conditions specified by the probation authorities, such language is sufficient to incorporate specific terms and conditions of probation set by the probation office.
State v. Green
, 2015-NMCA-007, cert. denied, 2014-NMCERT-012.
Sex offender behavior contract as a condition of probation.
— Where defendant was convicted of kidnapping, an element of which is that the victim be held for service against the victim's will, and where that holding for service can include holding a victim for sexual purposes, and where defendant's conviction involved criminal sexual contact with the victim, the district court did not abuse its discretion in ruling that the requirement that defendant comply with a sex offender behavior contract was reasonably related to defendant's current conviction.
State v. Green
, 2015-NMCA-007, cert. denied, 2014-NMCERT-012.
Maximum period of probation for misdemeanors.
— The maximum period of probation that may be assessed in misdemeanor or petty misdemeanor cases is the maximum allowable period of incarceration for that crime, irrespective of whether a defendant is sentenced in district court or in a lower tribunal.
State v. Candelaria
, 1991-NMCA-107, 113 N.M. 288, 825 P.2d 221.
No power to defer until conviction.
— The court has no power or authority to defer a sentence and impose obligations of probation upon a person charged with a crime, until that person is convicted of the crime.
State v. Apodaca
, 1969-NMCA-020, 80 N.M. 155, 452 P.2d 489.
Express adjudication not necessary.
— An express adjudication of conviction, or finding of guilt, is not necessary if it is apparent from other matters in the record that the court made a judicial determination of conviction or guilt.
State v. Apodaca
, 1969-NMCA-020, 80 N.M. 155, 452 P.2d 489.
Court may suspend defendant's 18-month term, impose five-year probation.
— The trial court's judgment in suspending part of defendant's term of incarceration and imposing a five-year term of supervised probation was upheld by this section, even though defendant had been convicted of a fourth-degree felony with a basic term of incarceration of 18 months.
State v. Encinias
, 1986-NMCA-049, 104 N.M. 740, 726 P.2d 1174, cert. denied, 104 N.M. 632, 725 P.2d 832.
Trial court may impose conditions of probation authorized by law;
conditions of probation unauthorized by law are void.
State v. Ayala
, 1981-NMCA-008, 95 N.M. 464, 623 P.2d 584.
Provision for costs controls over 31-12-6 NMSA 1978.
— The legislature having made a specific provision for costs as a condition of probation in Subsection A that specific provision controls over the general provision of 31-12-6 NMSA 1978.
State v. Ayala
, 1981-NMCA-008, 95 N.M. 464, 623 P.2d 584.
Assessment of costs against defendant upon deferred sentence permitted.
— The authorization in 31-12-6 NMSA 1978 that cost may be adjudged against the defendant, based on a conviction, permits assessment of costs against a defendant whose sentence is deferred.
State v. Ayala
, 1981-NMCA-008, 95 N.M. 464, 623 P.2d 584.
Defendant cannot challenge amount or method of paying costs when objections initially waived.
— Having requested the court's exercise of discretion, and having waived all objections to an assessment of costs in lieu of a fine, the defendant may not later challenge either the amount or method of payment ordered.
State v. Padilla
, 1982-NMCA-100, 98 N.M. 349, 648 P.2d 807, cert. denied, 98 N.M. 336, 648 P.2d 794.
This section does not authorize jury and bailiff costs
in prosecuting a defendant as a condition of probation.
State v. Ayala
, 1981-NMCA-008, 95 N.M. 464, 623 P.2d 584.
Jury and bailiff costs are part of expense of maintaining system of courts
and the administration of justice and may not be assessed against a defendant if they were assessed independently of any condition of probation.
State v. Ayala
, 1981-NMCA-008, 95 N.M. 464, 623 P.2d 584.
Required contribution to sheriff's department unauthorized.
— A probation condition requiring the defendant to contribute $500 to a county sheriff's department was unauthorized and therefore void. On remand, the trial court had to reconsider imposition of a fine not to exceed $500.
State v. Dominguez
, 1993-NMCA-042, 115 N.M. 445, 853 P.2d 147, cert. denied, 115 N.M. 409, 852 P.2d 682.
Restitution, ordered as a condition of probation, must be reasonably related to a proper rehabilitative purpose.
— Where defendant was ordered as part of her sentence, following a guilty plea to the offense of forgery, to pay restitution for the costs of her extradition from New York, the restitution order could not have been authorized by the district court pursuant to this section because the order to pay extradition costs was not reasonably related to a proper rehabilitative purpose.
State v. George
, 2020-NMCA-039.
Warrantless search condition is fairly and reasonably placed in probation order
to facilitate the probation officer's important supervisory and protective duties to help assure that the probationer assumes his responsibility a responsibility both to the probationer himself and to society to stay on a path of rehabilitation.
State v. Baca
, 2004-NMCA-049, 135 N.M. 490, 90 P.3d 509.
Warrantless probation searches cannot be without a proper showing
of an adequate degree of likelihood of criminal activity.
State v. Baca
, 2004-NMCA-049, 135 N.M. 490, 90 P.3d 509.
And such searches can and must be supported by reasonable suspicion
as defined in New Mexico law to be an awareness of specific articulable facts, judged objectively, that would lead a reasonable person to believe criminal activity occurred or was occurring.
State v. Baca
, 2004-NMCA-049, 135 N.M. 490, 90 P.3d 509.
Exigent circumstances are not required in connection with warrantless probation search
supported by reasonable suspicion.
State v. Baca
, 2004-NMCA-049, 135 N.M. 490, 90 P.3d 509.
For rehabilitation and community safety purposes, probation officers have the right to conduct warrantless searches without the added requirement of exigent circumstances.
State v. Baca
, 2004-NMCA-049, 135 N.M. 490, 90 P.3d 509.
Condition of probation requiring prior narcotics offender to submit to search
is reasonably related the probationer's prior criminal conduct and is aimed at deterring or discovering subsequent criminal offenses.
State v. Gardner
, 1980-NMCA-122, 95 N.M. 171, 619 P.2d 847.
Statutory handling for probation violation.
— Because the terms of probation are defined by the probation statutes, a probation violation must be handled as prescribed in Section 31-21-15 NMSA 1978.
State v. Leslie
, 2004-NMCA-106, 136 N.M. 244, 96 P.3d 805.
When jurisdiction to vacate and revoke suspension exists.
— The power of a district court to vacate and revoke an order of suspension exists only when some one or more of such terms or conditions specified in the order of suspension have been breached.
State v. Baros
, 1968-NMSC-001, 78 N.M. 623, 435 P.2d 1005.
Proof of violation needed.
— The court has the power to revoke the suspension of sentence and to thereupon invoke the same, upon proof being made of the violation of the conditions of probation.
State v. Baca
, 1969-NMCA-076, 80 N.M. 527, 458 P.2d 602.
Subsequent criminal conviction not necessary.
— A conviction of a subsequent criminal offense is not necessary to the revocation of suspension and the invocation of a prior suspended sentence.
State v. Baca
, 1969-NMCA-076, 80 N.M. 527, 458 P.2d 602.
Degree of proof.
— The degree of proof required to support a finding of a violation of probation is met when the evidence establishes a violation of the conditions of probation with such reasonable certainty as to satisfy the conscience of the court of the truth of the violation. It does not have to be established beyond a reasonable doubt.
State v. Baca
, 1969-NMCA-076, 80 N.M. 527, 458 P.2d 602.
Violation of probation must be established with reasonable certainty
so as to satisfy the conscience of the court as to the truth of the violation; however, a violation of probation need not be established beyond a reasonable doubt.
State v. Martinez
, 1972-NMCA-135, 84 N.M. 295, 502 P.2d 320.
Sufficiency of terms.
— Where the trial judge imposed as a condition of probation that defendant report to the probation office as directed by the probation office and ordered that the conditions and terms of probation are made conditions and terms of the deferred sentence, the fact that the times when defendant was to report to the probation office, and that the terms of the probation office were not spelled out in the deferred sentence, did not show that such times and terms were not conditions of probation imposed by the trial court and the conditions of probation were sufficiently stated.
State v. Martinez
, 1972-NMCA-135, 84 N.M. 295, 502 P.2d 320.
Where no amendment of judgment or sentence allowed.
— Where district court, when it sentenced defendant to six months in county jail and suspended the balance of the sentence without probation, issued a valid original judgment and sentence, accordingly could not amend that judgment and sentence to add the conditions of probation, since a valid sentence may not be amended by increasing the penalty.
State v. Soria
, 1971-NMCA-042, 82 N.M. 509, 484 P.2d 351.
Community service may be condition of probation for gambling.
— No one would dispute that criminal activity is anti-social by nature; ergo, community service as a condition of probation is not unrelated to the offense of gambling.
State v. Padilla
, 1982-NMCA-100, 98 N.M. 349, 648 P.2d 807, cert. denied, 98 N.M. 336, 648 P.2d 794.
Jury trial limited to identity question.
— In proceedings to revoke a suspended sentence, the right to a jury trial is limited to the question of identity.
State v. Raines
, 1967-NMCA-026, 78 N.M. 579, 434 P.2d 698.
Application of increased probation costs limited.
— Increased probation costs, i.e., any amount in excess of $200 annually, can only constitutionally be applied to offenses which occur on or after June 19, 1981, at least to the extent the 1981 amendment to this section is relied upon as authority for the increased probation costs. 1981 Op. Att'y Gen. No. 81-15.
Increased probation terms limited.
— The increased probation term of five years authorized by the 1981 amendment, i.e., any term in excess of four years for a third degree felony or any term in excess of two years for a fourth degree felony, can only constitutionally be applied to a third or fourth degree felony which occurs on or after June 19, 1981. 1981 Op. Att'y Gen. No. 81-15.
Parole costs limited.
— Parole costs authorized by Section 31-21-10 NMSA 1978 can only constitutionally be applied to prisoners who are placed on parole for crimes committed on or after June 19, 1981, at least to the extent the 1981 amendment to this section is relied on as authority for parole costs. 1981 Op. Att'y Gen. No. 81-15.
Limit on charitable contributions required of defendant.
— Absent a clear legislative determination to the contrary, state judges do not have the power to require a defendant to pay money to a charitable organization unaggrieved by the defendant's offense. 1987 Op. Att'y Gen. No. 87-09.
"Drug abuse resistance education program" refers to programs affiliated with the D.A.R.E. organization.
— If a metropolitan, magistrate or district court chooses to defer or suspend a criminal sentence, New Mexico law requires that the court impose certain conditions to ensure that the defendant will observe the laws of the United States and the various states and the ordinances of any municipality, and among these conditions, the court may require a defendant to make a monetary contribution to one of three listed programs, a local crime stopper program, a local domestic violence prevention or treatment program or a local drug abuse resistance education program. The most common use of "drug abuse resistance education" generally is in relation to an organization which uses the program acronym D.A.R.E. (drug abuse resistance education), which is a nationally known 501(c)(3) organization that brings local law enforcement into schools to aid in educating students about drug use and its dangers, and the legislative history of 31-20-6(E) NMSA 1978, supports the position that "a local drug abuse resistance education program" should be interpreted narrowly, and that it is only to be applied to programs under the D.A.R.E. organization and not to other alternative sentencing programs that may provide services unrelated to drug education.
Pecos Valley Teen Court being considered a "local drug abuse resistance education program" under NMSA 1978, Section 31-20-6(E)
(1/25/21), Att'y Gen. Adv. Ltr. 2021-01.
Law reviews.
— For comment, "Definitive Sentencing in New Mexico: The 1977 Criminal Sentencing Act," see 9 N.M.L. Rev. 131 (1978-79).
For annual survey of New Mexico law relating to criminal procedure, see 12 N.M.L. Rev. 271 (1982).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 21 Am. Jur. 2d Criminal Law § 907 et seq.
Validity of probation on condition of leaving state or locality, 70 A.L.R. 100.
Propriety of requirement, as condition of probation, that defendant refrain from use of intoxicants, 19 A.L.R.4th 1251.
Propriety, under 18 U.S.C.S. § 3651, of district court's requiring contribution of money or services to charity or to community service as condition of suspending sentence and granting probation, 66 A.L.R. Fed. 825.
Propriety, in criminal case, of Federal District Court order restricting defendant's right to re-enter or stay in United States, 94 A.L.R. Fed. 619.