2020 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 20 - Sentencing
Section 31-20-5 - Placing defendant on probation.

A. When a person has been convicted of a crime for which a sentence of imprisonment is authorized and when the magistrate, metropolitan or district court has deferred or suspended sentence, it shall order the defendant to be placed on probation for all or some portion of the period of deferment or suspension if the defendant is in need of supervision, guidance or direction that is feasible for the corrections department to furnish. Except for sex offenders as provided in Section 31-20-5.2 NMSA 1978, the total period of probation for district court shall not exceed five years and the total period of probation for the magistrate or metropolitan courts shall be no longer than the maximum allowable incarceration time for the offense or as otherwise provided by law.

B. If a defendant is required to serve a period of probation subsequent to a period of incarceration:

(1) the period of probation shall be served subsequent to any required period of parole, with the time served on parole credited as time served on the period of probation and the conditions of probation imposed by the court deemed as additional conditions of parole; and

(2) in the event that the defendant violates any condition of that parole, the parole board shall cause him to be brought before it pursuant to the provisions of Section 31-21-14 NMSA 1978 and may make any disposition authorized pursuant to that section and, if parole is revoked, the period of parole served in the custody of a correctional facility shall not be credited as time served on probation.

History: 1953 Comp., § 40A-29-17, enacted by Laws 1963, ch. 303, § 29-17; and recompiled as 1953 Comp., § 40A-29-41, by Laws 1977, ch. 216, § 16; 1984, ch. 106, § 2; 1985, ch. 75, § 1; 2003 (1st S.S.), ch. 1, § 6.

The 2003 (1st S.S.) amendment, effective February 3, 2004, substituted "corrections department to furnish. Except for sex offenders as provided in Section 31-20-5.2 NMSA 1978" for "field services division of the corrections department to furnish; provided, however" near the middle of Subsection A.

Application to multiple sentences. — Where the defendant was serving two separate sentences for two separate convictions, the defendant's failure to successfully complete parole in one case tolled the time for bringing a probation revocation petition in the second case. State v. Neal, 2007-NMCA-086, 142 N.M. 487, 167 P.3d 935.

Legislative intent. — Legislature clearly intended in this section 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 Section 31-20-6 NMSA 1978. State v. Soria, 1971-NMCA-042, 82 N.M. 509, 484 P.2d 351.

Probation required. — This section provides that where a defendant receives a deferred or suspended sentence, the court must order probation. State v. Leslie, 2004-NMCA-106, 136 N.M. 244, 96 P.3d 805.

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.

Probation is part of suspended or deferred sentence. 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.

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.

Five-year probation limitation applies in aggregate. — Both the internal wording of this section and the legislative history suggest that the five-year limitation applies in the aggregate. State v. Devigne, 1981-NMCA-088, 96 N.M. 561, 632 P.2d 1199.

The total period of probation that may be imposed on a defendant for convictions that occurred at one trial is five years, even though the aggregate sum of the suspended sentences exceeds five years. State v. Devigne, 1981-NMCA-088, 96 N.M. 561, 632 P.2d 1199.

Maximum period of probation that court may impose as sentencing is a total of five years, regardless of the number of convictions, not that five years is the total amount of time a defendant can serve on probation, regardless of the number of violations. 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.

Effect where no fixed period of probation specified. — When a defendant is placed on probation, without a fixed period being specified, then that period of probation is the maximum set by this section. State v. Baca, 1977-NMCA-030, 90 N.M. 280, 562 P.2d 841.

Probation may not exceed maximum sentence. — Trial court erred in setting six-year probation period for defendant who pleaded guilty to two fourth-degree felony charges where sentences were to be served concurrently, since the maximum sentence for a fourth-degree felony was a penitentiary term of five years, and the period of probation could not exceed that of the maximum sentence prescribed by law for the commission of the crime for which he was convicted. State v. Crespin, 1977-NMCA-046, 90 N.M. 434, 564 P.2d 998.

Maximum length of probation. — This section limits the maximum length of probation to the maximum imprisonment which could have been imposed. State v. Gonzales, 1981-NMCA-086, 96 N.M. 556, 632 P.2d 1194.

Maximum period 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.

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 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.

Parole term not part of maximum sentence for determining probation. — The term of parole included in the original sentence is not to be utilized in determining the maximum length of probation under a suspended sentence. State v. Gonzales, 1981-NMCA-086, 96 N.M. 556, 632 P.2d 1194.

When probation requirements ineffective. — Once a deferred sentence becomes void, the probation requirements are no longer in effect. State v. Aragon, 1979-NMCA-074, 93 N.M. 132, 597 P.2d 317.

When probationary part of sentence void. — Where the court ordered a defendant placed on probation without deferring or suspending any of his sentences, this action is not within the bounds prescribed by law, and therefore, the probationary part of defendant's sentence is void. State v. Nolan, 1979-NMCA-116, 93 N.M. 472, 601 P.2d 442, cert. denied, 93 N.M. 683, 604 P.2d 821.

Parole time to be credited in all cases. — The legislature clearly intended that the parole time served prior to a period of probation would be credited in all cases; there is nothing in the statute indicating that it is to be applied only in those cases where the sentencing order is not specific in ordering that probation be served after the term of incarceration. Furthermore, the trial court may not ignore the mandate of the legislature in crafting a sentence. State v. Muniz, 1995-NMCA-024, 119 N.M. 634, 894 P.2d 411.

The trial court does not have the authority to order that a probation period be served consecutively to a parole period without the credit that is awarded by statute. State v. Muniz, 1995-NMCA-024, 119 N.M. 634, 894 P.2d 411.

Time served on probation not credited as time served on parole. — Because the court sentenced defendant to jail and not to prison, parole was not authorized; and, although Subsection B allows the time served on parole to be credited as time served on probation, no provision exists allowing the time served on probation to be credited as time served on parole. State v. Brown, 1999-NMSC-004, 126 N.M. 642, 974 P.2d 136.

When court may revoke suspension. — 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 of violation. — 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.

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 31-21-15 NMSA 1978. State v. Leslie, 2004-NMCA-106, 136 N.M. 244, 96 P.3d 805.

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.

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 of guilt 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.

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.

Suspension or deferment not matter of right. — Suspension or deferment of a sentence is not a matter of right but is an act of clemency. State v. Baca, 1977-NMCA-030, 90 N.M. 280, 562 P.2d 841.

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.

Effect where probation conditions not in deferred sentence; amendment. — In determining whether there is a violation of probation, an appellate court must look to the trial court's order. If the deferred sentence does not set out the conditions of probation, there are no conditions to be violated and conditions may not be added by amendment subsequent to imposition of a valid original judgment. State v. Martinez, 1972-NMCA-135, 84 N.M. 295, 502 P.2d 320.

Conditions of probation should be made clear in judgment. State v. Martinez, 1972-NMCA-135, 84 N.M. 295, 502 P.2d 320.

Probation violation necessary to revoke probation. — The trial court has authority to revoke defendant's probation and impose the penitentiary sentence; however, to do so, a violation of probation must be established. State v. Martinez, 1972-NMCA-135, 84 N.M. 295, 502 P.2d 320.

Incarceration after violation not required. — Neither this section nor Section 31-21-15 NMSA 1978 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.

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.

Probation 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.

Habeas corpus action moot where petitioner on probation. — Because petitioner had begun serving his mandatory period of probation under this section, his incarceration was complete; therefore, his habeas corpus action, alleging that amended regulations affecting his good time credits were impermissible, ex post facto laws, was moot, since such credits cannot be applied to a probationary term. Aragon v. Shanks, 144 F.3d 690 (10th Cir.), cert. denied, 525 U.S. 1005, 119 S. Ct. 518, 142 L. Ed. 2d 430 (1998).

Law reviews. — For article, "Survey of New Mexico Law, 1979-80: Criminal Law and Procedure," see 11 N.M.L. Rev. 85 (1981).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law § 904 et seq.

Power to impose sentence with direction that after defendant shall have served part of time he be placed on probation for the remainder of term, 147 A.L.R. 656.

Probation conditioned on restitution in connection with application for, or receipt of, public relief, 80 A.L.R.3d 1280.

Criminal liability under state laws in connection with application for, or receipt of, public welfare payments, 22 A.L.R.4th 534.

24 C.J.S. Criminal Law §§ 1549 to 1552, 1554, 1557, 1559.