2020 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 20 - Sentencing
Section 31-20-3 - Order deferring or suspending sentence; diagnostic commitment.

Upon entry of a judgment of conviction of any crime not constituting a capital or first degree felony, any court having jurisdiction when it is satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may either:

A. enter an order deferring the imposition of sentence;

B. sentence the defendant and enter an order suspending in whole or in part the execution of the sentence; or

C. commit the convicted person, if convicted of a felony and not committed for diagnostic purposes within the twelve-month period immediately preceding that conviction, to the department of corrections [corrections department] for an indeterminate period not to exceed sixty days for purposes of diagnosis, with direction that the court be given a report when the diagnosis is complete as to what disposition appears best when the interest of the public and the individual are evaluated.

History: 1953 Comp., § 40A-29-15, enacted by Laws 1963, ch. 303, § 29-15; 1971, ch. 204, § 4; and recompiled as 1953 Comp., § 40A-29-39, by Laws 1977, ch. 216, § 16; 1985, ch. 159, § 1.

Bracketed material. — The bracketed material in Subsection C was inserted by the compiler, as Laws 1977, ch. 257, § 4, abolished the department of corrections. Laws 1977, ch. 257, § 14, transferred all employees, equipment, etc., of this department to the criminal justice department. Laws 1980, ch. 150, § 3, changed the name of this department to the "corrections and criminal rehabilitations department." Laws 1981, ch. 73, § 1, changed the name of this department to the "corrections department." See 9-3-3 NMSA 1978. The bracketed material is not part of the law.

Constitutionality. — Laws 1909, ch. 32, § 1 (repealed), giving court power to suspend sentences, did not encroach upon constitutional power of execution to grant reprieves and pardons. Ex parte Bates, 1915-NMSC-060, 20 N.M. 542, 151 P. 698.

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.

Once the defendant's plea is accepted and judgment entered, court has four options: (1) it can sentence the defendant and execute the sentence, committing him to prison; (2) it can commit the defendant for a 60-day diagnostic term; (3) it can sentence the defendant and suspend the execution of the sentence; or (4) it can enter an order deferring the imposition of the sentence. State v. Kenneman, 1982-NMCA-145, 98 N.M. 794, 653 P.2d 170, cert. denied, 99 N.M. 47, 653 P.2d 878.

Prior conviction, not prior sentence, is dispositive for repeat offender status. — Where defendant was convicted of drug charges in New Mexico; the New Mexico court deferred defendant's sentence for a two-year probationary period; the sentence was a final judgment subject to appeal; and after defendant successfully completed the probation, defendant was entitled to have the New Mexico charges dismissed, the deferred sentence was a prior conviction for purposes of sentence enhancement. United States v. Meraz, 998 F.2d 182 (10th Cir. 1993).

Deferred sentence modified to conditional discharge. — Modification from a deferred sentence to a conditional discharge was an authorized sentence reduction under this section and Rule 5-801 NMRA. State v. Herbstman, 1999-NMCA-014, 126 N.M. 683, 974 P.2d 177.

Mandatory sentencing does not violate doctrine of separation of powers contained in N.M. Const., art. III, § 1. State v. Mabry, 1981-NMSC-067, 96 N.M. 317, 630 P.2d 269.

Effect of excepting sentencing for capital or first-degree felony. — The exception of capital or first-degree felonies from the list of the offenses for which the court may defer or suspend all or a portion of a sentence does not make sentencing for capital or first-degree felonies unconstitutional as cruel and unusual punishment. State v. Garcia, 1983-NMCA-069, 100 N.M. 120, 666 P.2d 1267, cert. denied, 100 N.M. 192, 668 P.2d 308.

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.

Jurisdiction to increase punishment by new sentence. — A trial court is without power to set aside a valid sentence after the defendant has been committed thereunder, and impose a new or different sentence increasing the punishment. A judgment which attempts to do so is void and the original judgment remains in force. State v. Baros, 1968-NMSC-001, 78 N.M. 623, 435 P.2d 1005.

Suspended or deferred sentence within court's discretion. — Of the sentencing alternatives available, a suspended or deferred sentence is within the discretion of the trial court. State v. Madrigal, 1973-NMCA-116, 85 N.M. 496, 513 P.2d 1278, cert. denied, 85 N.M. 483, 513 P.2d 1265.

Suspension matter of clemency. — Suspension of a sentence is a matter of clemency committed to the discretion of the trial court. Ewing v. State, 1969-NMCA-080, 80 N.M. 558, 458 P.2d 810.

Suspension not a matter of right. — Suspension or deferment of sentence is not a matter of right but is an act of clemency and committed to the discretion of the trial court. State v. Serrano, 1966-NMSC-166, 76 N.M. 655, 417 P.2d 795.

Suspension within court's discretion. — The suspension of execution of a sentence, or any portion thereof, is not a matter of right in the defendant, but is a matter of clemency committed to the discretion of the sentencing court in the criminal proceedings. State v. Knight, 1967-NMSC-241, 78 N.M. 482, 432 P.2d 838.

No authority 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 of guilt not needed. — 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.

Effect of nolo contendere plea. — Upon the acceptance of the plea of nolo contendere and entry of "judgment and sentence," by which the court deferred sentence and imposed conditions of probation, there was a determination of guilt, or a pronouncement of judgment. State v. Apodaca, 1969-NMCA-020, 80 N.M. 155, 452 P.2d 489.

Effect of sentence deferral. — An order deferring sentence in no way represents a suspension or a final sentence, at least for purposes of jurisdiction. Where deferral is ordered for the purpose of additional evaluation as recommended by department of corrections, a statutory sentence subsequently imposed is not a second sentence, but the first sentence imposed in the case. There is no second sentence raising a double jeopardy issue and no absence of authority in the trial court to impose the statutory sentence. State v. Wood, 1974-NMCA-113, 86 N.M. 731, 527 P.2d 494, cert. denied, 86 N.M. 730, 527 P.2d 493.

No abuse of discretion. — Trial court did not abuse its discretion by not adopting report of the psychiatrist or in not requesting diagnosis and recommendation from the department of corrections (now corrections department) as pertaining to defendant who pleaded guilty to count of contributing to delinquency of a minor. State v. Hogan, 1972-NMCA-037, 83 N.M. 608, 495 P.2d 388.

Sentence not unjust or improper. — Where the sentence in this case was in accordance with law, an appellate court cannot say it was unjust or improper in the circumstances because recommendations for a more lenient sentence were not followed or by imposing the statutory sentence on a 17-year-old first offender. State v. Madrigal, 1973-NMCA-116, 85 N.M. 496, 513 P.2d 1278, cert. denied, 85 N.M. 483, 513 P.2d 1265.

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.

Invalid grounds of sentence deferral. — A trial court may not defer sentencing after a conviction on condition that the defendant serve a certain period of time in a county jail and abide by terms of a probation agreement. State v. Lopez, 1982-NMCA-163, 99 N.M. 791, 664 P.2d 989.

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 when 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.

Suspension order must include any restrictions. — Restrictions to be imposed upon conduct of person under suspended sentence were to be specified in order of suspension. Ex parte Selig, 1924-NMSC-020, 29 N.M. 430, 223 P. 97; Ex parte Hamm, 1918-NMSC-058, 24 N.M. 33, 172 P. 190, 1918D L.R.A. 694.

Effect where good behavior required. — The words "good behavior," as used in order suspending sentence during good behavior, meant conduct conformable to law, and required no higher standard of conduct than the law demanded. Ex parte Hamm, 1918-NMSC-058, 24 N.M. 33, 172 P. 190, 1918D L.R.A. 694.

Jurisdiction after seven years. — Where defendant entered plea of nolo contendere to charge of contributing to delinquency of a minor and sentence was deferred until further order of court, lapse of almost seven years time did not deprive court of jurisdiction to impose sentence. State v. Sorrows, 1957-NMSC-091, 63 N.M. 277, 317 P.2d 324.

Reasonable investigation contemplated. — The statutes permitting the court to suspend or defer a sentence contemplate that reasonable investigation be made by the court in cases where probation is indicated, but no procedure is prescribed for such investigation, nor does the statute specify the character or quantum of evidence necessary to warrant the suspension or deferral of sentence. State v. Serrano, 1966-NMSC-166, 76 N.M. 655, 417 P.2d 795.

Effect of refusal to hear testimony. — The refusal of the trial court to hear the offered testimony upon application for suspension, or deferral of sentence, does not justify reversal since the statute makes no requirement that the contemplated investigation shall include a trial, or hearing, nor does the statute by implication, or otherwise, grant the defendant the right to introduce testimony in support of his request. State v. Serrano, 1966-NMSC-166, 76 N.M. 655, 417 P.2d 795.

Presumption where no reason for denial given. — Where defendant's counsel asked the court to place defendant on probation before sentence was imposed, and no reasons were given by the court for denying probation, it is presumed the court considered the question of probation before sentencing defendant to the penitentiary. State v. Follis, 1970-NMCA-083, 81 N.M. 690, 472 P.2d 655.

Credits allowed on unsuspended portion of sentence. — Good time credits shall be allowed to be deducted from the maximum unsuspended portion of a sentence for purposes of determining entitlement of right to release from imprisonment where other provisions of the law do not circumscribe the minimum imprisonment to be served. Coutts v. Cox, 1966-NMSC-027, 75 N.M. 761, 411 P.2d 347.

Additional sentences for firearm use and habitual offender status cannot be served concurrently. State v. Mayberry, 1982-NMCA-061, 97 N.M. 760, 643 P.2d 629.

Partial suspension with probation authorized. — A sentencing judge has the authority to suspend a sentence in part and then order probation for all or some of the portion which is suspended. State v. Sinyard, 1983-NMCA-150, 100 N.M. 694, 675 P.2d 426, cert. denied, 100 N.M. 689, 675 P.2d 421.

Court authorized to suspend or defer sentence for second heroin trafficking conviction. — A life sentence is not mandatory for a second conviction of trafficking in heroin and the court has the authority to suspend or defer the sentence imposed. State v. Sanchez, 1982-NMSC-032, 97 N.M. 521, 641 P.2d 1068.

Order committing defendant to state hospital for indeterminate period not valid sentence. — An order directing that the defendant be transported to the state hospital for an indeterminate period and then be returned to the district court for sentencing is not a valid sentence permitted by law, nor does it constitute a final judgment and sentence for purposes of an appeal. State v. Garcia, 1983-NMCA-017, 99 N.M. 466, 659 P.2d 918.

The legislature has imposed a 60-day maximum limitation on diagnostic commitments, and the court is without authority to impose a second diagnostic commitment or an indefinite commitment in the same cause. State v. Garcia, 1983-NMCA-017, 99 N.M. 466, 659 P.2d 918.

Diagnostic commitment not required prior to imposing sentence. — The court is not required to order a diagnostic commitment prior to imposing sentence. 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.

Diagnostic evaluation not merited. — Where the state argued that a 60-day evaluation was not necessary because the trial court had before it evidence of nine years of psychological evaluations, as well as the testimony of two mental health experts, it was within the court's discretion, based on the information before it, to conclude that a diagnostic evaluation was not merited. State v. Mireles, 2004-NMCA-100, 136 N.M. 337, 98 P.3d 727, cert. denied, 2004-NMCERT-008, 136 N.M. 492, 100 P.3d 197.

Suspended sentence void. — A court which is not encompassed in this statute does not have the authority to suspend a sentence and any suspension of a sentence by those courts is void. 1955 Op. Att'y Gen. No. 55-6163.

Indefinite deferral not allowed. — In the case of a defendant in a felony case who is convicted or pleads guilty, a district judge may not enter an order stating that the judgment and sentence of the court is "deferred indefinitely." 1960 Op. Att'y Gen. No. 60-31.

Requirement to leave jurisdiction void. — A suspended sentence, whether valid or invalid as to the right of the court to suspend, is absolutely a void sentence when imposed with the condition that the defendant leave and remain away from the jurisdiction. 1955 Op. Att'y Gen. No. 55-6163.

Sentencing where released person apprehended. — If the suspension of the sentence is void and the person after sentence is released, the sentence may then be imposed at any time the person is apprehended. The defendant falls into the category of an escaped convict at the time he is released after a void sentence suspension. 1955 Op. Att'y Gen. No. 55-6163.

Payment of transportation costs for diagnostic evaluation. — The state is required to pay transportation costs for prisoners committed for diagnostic evaluation under this section. 1972 Op. Att'y Gen. No. 72-20.

Magistrate court may order restitution. — The magistrate court may, as part of its sentencing power, order a Criminal Code or Motor Vehicle Code violator to make restitution. 1979 Op. Att'y Gen. No. 79-18.

Law reviews. — For article, " 'To Purify the Bar': A Constitutional Approach to Non-Professional Misconduct," see 5 Nat. Resources J. 299 (1965).

For comment, "Criminal Procedure - Preventive Detention in New Mexico," see 4 N.M.L. Rev. 247 (1974).

For article, "Defending the Criminal Alien in New Mexico: Tactics and Strategy to Avoid Deportation," see 9 N.M.L. Rev. 45 (1978-79).

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 law, see 13 N.M.L. Rev. 323 (1983).

For article, "Unintentional homicides caused by risk-creating conduct: Problems in distinguishing between depraved mind murder, second degree murder, involuntary manslaughter, and noncriminal homicide in New Mexico," 20 N.M.L. Rev. 55 (1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law § 896 et seq.

Constitutionality of statute conferring on court power to suspend sentence, 26 A.L.R. 399, 101 A.L.R. 402.

Are sentences on different counts to be regarded as for a single term or for separate terms as regards suspension of sentence, 107 A.L.R. 634.

Imposition or enforcement of sentence which has been suspended without authority, 141 A.L.R. 1225.

Loss of jurisdiction by delay in imposing sentence, 98 A.L.R.3d 605.

Admissibility of expert testimony as to appropriate punishment for convicted defendant, 47 A.L.R.4th 1069.

24 C.J.S. Criminal Law §§ 1550 to 1552.