2018 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 20 - Sentencing
Section 31-20-12 - Credit for time prior to conviction.

A person held in official confinement on suspicion or charges of the commission of a felony shall, upon conviction of that or a lesser included offense, be given credit for the period spent in presentence confinement against any sentence finally imposed for that offense.

History: 1953 Comp., § 40A-29-25, enacted by Laws 1967, ch. 221, § 2; and recompiled as 1953 Comp., § 40A-29-48, by Laws 1977, ch. 216, § 16.

Legislative intent. — The legislative intent in enacting Section 31-20-12 NMSA 1978 was to entitle a defendant to one day's credit against his total sentence for each day spent in presentence confinement. State v. Aaron, 1985-NMCA-060, 103 N.M. 138, 703 P.2d 915.

Applying credit. — Section 31-20-12 NMSA 1978 does not authorize presentence confinement credit unless the confinement was in connection with the offense charged. If, however, the defendant is held in confinement prior to trial or sentencing, simultaneously on two or more charges, presentence confinement credit should be given. State v. Page, 1984-NMCA-012, 100 N.M. 788, 676 P.2d 1353.

Constitutionality. — New Mexico's good time credit statutory scheme does not offend the constitutional guarantee of equal protection of the law; it is reasonable not to award good time credits for presentence confinement to detainees who are presumed innocent and therefore are not yet subject to rehabilitation efforts or to compulsory labor requirements, especially when they are held without systematic evaluation in county jails lacking rehabilitation programs. State v. Aqui, 1986-NMSC-048, 104 N.M. 345, 721 P.2d 771, cert. denied, 479 U.S. 917, 107 S. Ct. 321, 93 L. Ed. 2d 294 (1986).

Double jeopardy. — Failure to allow good time credit for presentence confinement does not subject a prisoner to double jeopardy. Enright v. State, 1986-NMSC-070, 104 N.M. 672, 726 P.2d 349.

Equal protection and due process. — New Mexico's statutory scheme, which does not allow good time credit for presentence confinement, does not offend the equal protection and due process guarantees of the New Mexico and United States constitutions. Enright v. State, 1986-NMSC-070, 104 N.M. 672, 726 P.2d 349.

Equal protection does not compel retroactive application. — The equal protection guarantee of the state and federal constitutions does not compel a retroactive application of the provisions of this section, which gives credit for time served prior to conviction. State v. Sedillo, 1968-NMCA-033, 79 N.M. 255, 442 P.2d 213.

Failure to give retroactive effect did not violate equal protection provisions of the state and federal constitutions. State v. Dalrymple, 1968-NMCA-083, 79 N.M. 670, 448 P.2d 182.

No violation due to newly created right. — There is no denial of equal protection of the laws in failing to give retroactive effect to a newly created right which allows credit for presentence confinement. State v. Thomas, 1968-NMCA-043, 79 N.M. 346, 443 P.2d 516

Statute inapplicable to sentence before its effective date. — This act became effective in 1967. The statute is not applicable to a sentence which was imposed upon defendant in 1963. To so apply it would require that it be given retrospective effect. State v. Padilla, 1968-NMCA-004, 78 N.M. 702, 437 P.2d 163.

No retroactive effect where presentence confinement preceded effective dates. — Where defendant's presentence confinement time occurred prior to the effective date of this section, the statute is not to be given retroactive effect. State v. Luna, 1968-NMCA-041, 79 N.M. 307, 442 P.2d 797.

Purpose of section. — The purpose of this section is to give some relief to persons who, because of an inability to obtain bail, are held in custody. State v. Howard, 1989-NMCA-029, 108 N.M. 560, 775 P.2d 762, cert. denied, 108 N.M. 433, 773 P.2d 1240.

Section has been strictly interpreted, with resulting benefits to the defendant. State v. Ramzy, 1982-NMCA-113, 98 N.M. 436, 649 P.2d 504.

Compliance with 31-18-21 NMSA 1978. — Section 31-18-21 NMSA 1978 mandates that a sentence for a felony committed while serving a sentence in a penal institution run consecutive to the prior sentence. It is impossible to grant "presentence" confinement credit concurrent with time served on the prior sentence and comply with that section, which requires that the sentences run consecutively. State v. Facteau, 1990-NMSC-040, 109 N.M. 748, 790 P.2d 1029.

Sentence must have been direct result of felony committed. — This section allows for presentence confinement credit only if the sentence was a direct result of the felony committed. State v. Facteau, 1990-NMSC-040, 109 N.M. 748, 790 P.2d 1029.

Discretion of court to determine time credited. — It is for the trial court to determine at the time of sentencing, from relevant documents or other evidence to be made a part of the record, the specific presentence confinement to be credited against any sentence finally imposed for offenses on which an accused has been held. Stewart v. State, 1991-NMSC-095, 112 N.M. 653, 818 P.2d 854.

Discretion not to apply pre-sentence confinement credit to probation time. — Under Section 31-20-12 NMSA 1978, it is within discretion of the district court not to credit pre-sentence confinement credit to probation time. State v. Nieto, 2013-NMCA-065, 303 P.3d 855, cert. denied, 2013-NMCERT-004.

Where defendant spent 103 days in custody pending trial for aggravated assault; defendant's sentence of three years' imprisonment was suspended and defendant was ordered to complete a three-year period of probation; the district court ordered that if defendant's probation were revoked, defendant would be given credit for defendant's pre-sentence confinement of 103 days; and the district court declined to apply the pre-sentence confinement credit to defendant's probation sentence, the district court did not abuse its discretion. State v. Nieto, 2013-NMCA-065, 303 P.3d 855, cert. denied, 2013-NMCERT-004.

Credit for multiple DWI offenses. — Because the legislature provides in Section 66-8-102 NMSA 1978 that, for a first DWI offender, time spent in jail prior to conviction is to be credited against the offender's sentence, and because fourth and subsequent offenders are felons, who are also granted such credit pursuant to this section, the legislature's silence as to second and third offenses implies an intent to afford courts discretion to grant credit to third and fourth offenders. State v. Martinez, 1998-NMSC-023, 126 N.M. 39, 966 P.2d 747.

Court may revise sentence to give credit. — Rule 93, N.M.R. Civ. P. (now Rule 1-093 NMRA), specifically authorizes the trial court to correct a sentence. McCroskey v. State, 1970-NMCA-109, 82 N.M. 49, 475 P.2d 49 (decided under prior law).

No time limit for request for credit. — The authorization contained in Rule 93, N.M.R. Civ. P. (now Rule 1-093 NMRA), is not limited to the term of court during which the incorrect sentence was imposed as a motion for such relief may be made at any time. McCroskey v. State, 1970-NMCA-109, 82 N.M. 49, 475 P.2d 49 (decided under prior law).

Credit to equal presentence confinement period. — A defendant is entitled to one day's credit against his total sentence for each day spent in presentence confinement. Regardless of whether the sentences for multiple felonies are to run concurrently or consecutively, credit is given only for that period actually spent in presentence confinement. State v. Howard, 1989-NMCA-029, 108 N.M. 560, 775 P.2d 762, cert. denied, 108 N.M. 433, 773 P.2d 1240.

How credit should be granted. — A one-day credit should be granted for every 24 hours, or fraction thereof. For example, if someone is arrested at 10:00 p.m. and released at 9:30 a.m. the next morning, he or she should only get a one-day credit because the confinement is less than 24 hours. If, on the other hand, someone is arrested at 8:00 a.m. and released at 9:30 a.m. the following day, the confinement would amount to a two-day credit because the confinement exceeded a 24 hour period. State v. Miranda, 1989-NMCA-068, 108 N.M. 789, 779 P.2d 976, cert. denied, 108 N.M. 771, 779 P.2d 549.

No multiplication by number of sentences. — Presentence confinement credit is not to be multiplied by the number of different sentences imposed. State v. Miranda, 1989-NMCA-068, 108 N.M. 789, 779 P.2d 976, cert. denied, 108 N.M. 771, 779 P.2d 549.

Consecutive and concurrent sentences. — An offender who receives consecutive sentences is entitled to presentence incarceration credit only once against the aggregate of all the sentences, while an offender sentenced to concurrent terms in effect receives credit against each sentence. State v. Miranda, 1989-NMCA-068, 108 N.M. 789, 779 P.2d 976, cert. denied, 108 N.M. 771, 779 P.2d 549.

"Double credit". — Where defendant was out on bond for aggravated battery, arrested for a second crime of domestic violence, had his bond revoked, and was incarcerated until his trials on the separate charges, and was convicted on both charges, he did not have a right to presentence credit for the entire time of his presentence incarceration against both consecutive sentences. State v. Romero, 2002-NMCA-106, 132 N.M. 745, 55 P.3d 441, cert. denied, 132 N.M. 732, 55 P.3d 428.

Presentence confinement must be for crime charged. — This section was not applicable to prisoner who pleaded guilty to a misdemeanor committed in the state penitentiary while he was serving a prior sentence, and sought credit on his sentence for the days which elapsed between the day he was served with a warrant for his arrest and the day when judgment and sentence was entered on his plea of guilty, as confinement during this period was pursuant to his prior sentence. State v. Brewton, 1971-NMCA-120, 83 N.M. 50, 487 P.2d 1355.

The decisive factor in allowing credit for presentence confinement in a case is whether the confinement was actually related to the charges of that particular case. It is not necessary that the confinement be related exclusively to the charges in question. State v. Ramzy, 1982-NMCA-113, 98 N.M. 436, 649 P.2d 504.

This section does not authorize credit for presentence confinement that is not actually related to the charges of the particular offense. State v. Laskay, 1986-NMCA-008, 103 N.M. 799, 715 P.2d 72, cert. denied, 103 N.M. 798, 715 P.2d 71.

The determinative issue for presentence confinement credit is whether the basis for the confinement was actually related to the charge upon which the final conviction and sentence are based. State v. Miranda, 1989-NMCA-068, 108 N.M. 789, 779 P.2d 976, cert. denied, 108 N.M. 771, 779 P.2d 549.

Confinement for multiple offenses. — It is not necessary that the confinement in question relate exclusively to the charges against which a defendant seeks credit. Since the defendant in this case was in a Texas jail on both a Texas charge and a New Mexico warrant, he was entitled to credit in New Mexico. State v. Barrios, 1993-NMCA-138, 116 N.M. 580, 865 P.2d 1224.

Credit for time served on invalidated guilty plea. — The defendant was entitled to time served pursuant to a sentence on an invalidated guilty plea even though the counts on which she was convicted at trial were different from the counts to which she had pleaded guilty; there was a causal connection between the charges on which the defendant was convicted and the sentence pursuant to the invalidated plea. State v. Wittgenstein, 1995-NMCA-010, 119 N.M. 565, 893 P.2d 461.

If transfer of confinement unrelated to charge in question, no confinement credit. — Where the defendant is already confined on an unrelated charge and there is a transfer of the place of confinement, the actual confinement being unrelated to the charge in question, the trial court is correct in denying the defendant's motion for presentence confinement credit. State v. Orona, 1982-NMCA-143, 98 N.M. 668, 651 P.2d 1312.

Presentence confinement credit properly awarded. — The trial court had discretion to award defendant presentence confinement credit for that time spent in custody after his parole was revoked based on the drug paraphernalia charge for which he was ultimately sentenced in this case. State v. Irvin, 1992-NMCA-121, 114 N.M. 597, 844 P.2d 847.

Hospitalization after being taken into custody. — The fact that defendant was hospitalized following his being taken into custody did not preclude award of presentence confinement credit for the time spent in the hospital. State v. Watchman, 1991-NMCA-010, 111 N.M. 727, 809 P.2d 641, cert. denied, 111 N.M. 529, 807 P.2d 227, overruled in part on other grounds by State v. Hosteen, 1996-NMCA-084, 122 N.M. 228, 923 P.2d 595.

Confinement in mental hospital after arrest constitutes "official confinement". — Defendant was committed under Section 31-9-1 NMSA 1978 to the state hospital and confined therein for 463 days after being found incapable of assisting in his defense on pending felony charges, lacking in the mental capacity to stand trial, and in need of care, custody and treatment in a mental hospital, with provision that he be at all times under maximum security conditions and not be released without further written order of the court, it was held that defendant had been under official confinement on charges of committing a felony and was therefore entitled under this statute to credit against his sentence for presentence confinement time spent in the hospital. State v. La Badie, 1975-NMCA-032, 87 N.M. 391, 534 P.2d 483.

Mental hospital confinement. — Confinement in a mental hospital after arrest constitutes "official confinement", as outlined in this section. State v. Miranda, 1989-NMCA-068, 108 N.M. 789, 779 P.2d 976, cert. denied, 108 N.M. 771, 779 P.2d 549.

Electronic monitoring program. — A defendant is entitled to presentence confinement credit for time under house arrest pursuant to an electronic monitoring program if the defendant is in constructive custody and can be punished for escape for non-compilance with the house arrest order. State v. Duhon, 2005-NMCA-120, 138 N.M. 466, 122 P.3d 50, cert. quashed, 2006-NMCERT-003, 139 N.M. 352, 132 P.3d 1038.

Voluntary treatment program not "confinement" under this section. — Presentence confinement credit against a felony DWI jail sentence may not be given for time spent in an inpatient alcohol treatment program, where the state did not require defendant's participation in the program and exercised no control over him while he was in the program. State v. Clah, 1997-NMCA-091, 124 N.M. 6, 946 P.2d 210, cert. denied, 123 N.M. 626, 944 P.2d 274.

House arrest as "official confinement". — Time spent outside of jail may qualify as "official confinement" for the purposes of receiving presentence confinement credit under this section when: (1) a court has entered an order releasing the defendant from a facility but has imposed limitations on the defendant's freedom of movement, or the defendant is in the actual or constructive custody of state or local law enforcement or correctional officers; and (2) the defendant is punishable for a crime of escape if there is an unauthorized departure from the place of confinement or other non-compliance with the court's order. State v. Fellhauer, 1997-NMCA-064, 123 N.M. 476, 943 P.2d 123, cert. denied, 123 N.M. 446, 942 P.2d 189.

Condition that a drunk driving defendant remain at his home at all times except to attend alcohol counseling, work, or religious services was a sufficient limitation on his freedom of movement to meet the first subprong of the Fellhauer test and to therefore entitle him to presentence credit for time spent under house arrest. State v. Guillen, 2001-NMCA-079, 130 N.M. 803, 32 P.3d 812.

When no credit authorized by section. — If a past confinement is not in connection with the present offense charged, this section does not authorize a credit. State v. Barefield, 1979-NMCA-060, 92 N.M. 768, 595 P.2d 406.

Defendant was not entitled to 11 months of presentence confinement credit against his sentence for escape from the penitentiary, where he was serving time on a burglary charge when he escaped, where he was captured and was immediately incarcerated to continue to serve time on his burglary charge, and where he was later sentenced to an additional nine years for the escape to run consecutively to his original charge. State v. Facteau, 1990-NMSC-040, 109 N.M. 748, 790 P.2d 1029.

Conditions of confinement not relevant. — When the defendant had not appeared for sentencing following a guilty plea, was later found in California serving a sentence for another crime, and a New Mexico detainer was lodged against him as a result of which the conditions of his confinement became more onerous, he was not entitled to credit for the time served in California after lodging of the detainer since his confinement there was not due to the New Mexico charges. State v. Ruiz, 1995-NMCA-093, 120 N.M. 420, 902 P.2d 575, cert. denied, 120 N.M. 394, 902 P.2d 76.

Application to delinquent offenders. — The presentence confinement credit provided for in Sections 31-18-15.3 and 31-20-12 NMSA 1978 applies only to serious youthful offenders sentenced as adults, and not to a child adjudicated as a delinquent offender for a lesser-included offense. State v. Nanco, 2012-NMCA-109, 288 P.3d 527, cert. granted, 2012-NMCERT-010.

Where the child, who was fifteen years old, was charged with committing first degree murder and two counts of tampering with evidence, and the jury determined that the child had committed the delinquent acts of voluntary manslaughter and one count with tampering with evidence, the child was not entitled to presentence confinement credit for the twenty-five months the child was detained in a juvenile detention facility before the district court adjudicated the child a delinquent offender. State v. Nanco, 2012-NMCA-109, 288 P.3d 527, cert. granted, 2012-NMCERT-010.

Application of section prospective only. — All persons convicted of a felony or of a lesser included offense, as of March 31, 1967, are to be given credit against any sentence imposed for that offense for all time spent in presentence confinement. This section is prospective only, and does not apply to those convicted before that date. 1973 Op. Att'y Gen. No. 73-66.

Law reviews. — For note, "Home Alone: Why House Arrest Doesn't Qualify for Presentence Confinement Credit in New Mexico - State v. Fellhauer," see 28 N.M.L. Rev. 519 (1998).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Time which convict spends in hospital as credit on his sentence, 62 A.L.R. 246.

Right of state or federal prisoner to credit for time served in another jurisdiction before delivery to state or federal authorities, 18 A.L.R.2d 511.

Right to credit for time served under void sentence, 35 A.L.R.2d 1283.

Computation of incarceration time under work-release or "hardship" sentences, 28 A.L.R.4th 1265.

Validity, construction, and application of concurrent-sentence doctrine - state cases, 56 A.L.R.5th 385.