2020 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 20 - Sentencing
Section 31-20-8 - Effect of termination of period of suspension without revocation of order.

Whenever the period of suspension expires without revocation of the order, the defendant is relieved of any obligations imposed on him by the order of the court and has satisfied his criminal liability for the crime. He shall thereupon be entitled to a certificate from the court so reciting such facts, and upon presenting the same to the governor, the defendant may, in the discretion of the governor, be granted a pardon or a certificate restoring such person to full rights of citizenship.

History: 1953 Comp., § 40A-29-21, enacted by Laws 1963, ch. 303, § 29-21; and recompiled as 1953 Comp., § 40A-29-44, by Laws 1977, ch. 216, § 16.

Lack of jurisdiction to deny credit for time served on probation. — Where defendant, who was convicted of DWI, violated probation and the district court did not revoke defendant's probation before the probationary period expired, the court lost jurisdiction under Section 31-20-8 NMSA 1978 to deny defendant credit for time served on probation as provided in Subsection S of Section 66-8-102 NMSA 1978. State v. Ordunez, 2010-NMCA-095, 148 N.M. 620, 241 P.3d 621, cert. granted, 2010-NMCERT-010, 49 N.M. 64, 243 P.3d 1146, aff'd by 2012-NMSC-024.

Order of unsatisfactory completion not authorized. — A trial court is without jurisdiction to enter an order of unsatisfactory completion after the probation period ends. State v. Lara, 2000-NMCA-073, 129 N.M. 391, 9 P.3d 74.

A trial court is not deprived of jurisdiction 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, was 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 magistrate court had the authority to issue its order revoking defendant's original probationary sentence and imposing a new sentence, because defendant's probationary period did not run from the date the magistrate court issued the bench warrant to the date of defendant's arrest. The phrase "whenever the period of suspension expires" cannot be read to include those instances when a probationary period expires while a defendant has absconded after allegedly violating probation. State v. Begay, 2017-NMSC-009, rev'g 2016-NMCA-039, 368 P.3d 1246.

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.

Defendant's probation could not be revoked after it had expired. — Where, in 2004, defendant pleaded guilty to a fourth-degree aggravated DWI; in 2007, defendant was arrested for another DWI in violation of the 2004 probation conditions; on September 7, 2007, the State filed a petition to revoke defendant probation; the district court scheduled a probation revocation hearing for October 25, 2007 and later reset the hearing for December 20, 2007; and the applicable statutory provisions of Section 66-8-102 NMSA 1978 governing sentence credit for time served on probation were those in effect in 2004, which gave defendant full credit for time served on probation, not those in effect in 2007, which gave defendant no credit for time served on probation; and under the 2004 version of the statute, defendant's probation was scheduled to expire on October 19, 2007, defendant's probation had expired before the probation revocation hearing and the district court did not have authority to revoke defendant's probation. State v. Ordunez, 2012-NMSC-024, 283 P.3d 282.

The district court is divested of jurisdiction when a probation term expires, and the expiration of jurisdiction cannot be waived. — This section divests the district court of jurisdiction to revoke a defendant's probation when a probation term expires, and this loss of jurisdiction is unaffected by a defendant's waiver of the time limits within which a revocation hearing must be held after a violation of probation is alleged, and staying revocation proceedings to determine the defendant's competency likewise does not toll the district court's loss of jurisdiction. State v. Godkin, 2015-NMCA-114.

Where defendant appealed the denial of his motion to dismiss for lack of jurisdiction following remand from a prior appeal in which the New Mexico court of appeals remanded the case for a competency evaluation and for a new revocation hearing, the district court was without jurisdiction to revoke defendant's probation when the probation period expired prior to the revocation hearing, and the stay of proceedings to determine competency likewise did not toll defendant's probation. State v. Godkin, 2015-NMCA-114.

Am. Jur. 2d, A.L.R. and C.J.S. references. — Right to assistance of counsel at proceedings to revoke probation, 44 A.L.R.3d 306.

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

Pardoned or expunged conviction as "prior offense" under state statute or regulation enhancing punishment for subsequent conviction, 97 A.L.R.5th 293.