HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR

HOUSE BILL 296

52nd legislature - STATE OF NEW MEXICO - second session, 2016

AN ACT

RELATING TO CRIMINAL SENTENCING; DEFINING "PROBATIONER" FOR THE PURPOSES OF THE STATUTE GOVERNING RETURN OF A PROBATION VIOLATOR; DECLARING AN EMERGENCY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 31-21-15 NMSA 1978 (being Laws 1963, Chapter 301, Section 13, as amended) is amended to read:

     "31-21-15. RETURN OF PROBATION VIOLATOR.--

          A. At any time during probation:

                (1) the court may issue a warrant for the arrest of a probationer for violation of any of the conditions of release. The warrant shall authorize the return of the probationer to the custody of the court or to any suitable detention facility designated by the court;

                (2) the court may issue a notice to appear to answer a charge of violation. The notice shall be personally served upon the probationer; or

                (3) the director may arrest a probationer without warrant or may deputize any officer with power of arrest to do so by giving [him] the officer a written statement setting forth that the probationer has, in the judgment of the director, violated the conditions of [his] the probationer's release. The written statement, delivered with the probationer by the arresting officer to the official in charge of a county jail or other place of detention, is sufficient warrant for the detention of the probationer. Upon the probationer's arrest and detention, the director shall immediately notify the court and submit in writing a report showing in what manner the probationer has violated the conditions of release.

          B. The court shall then hold a hearing, which may be informal, on the violation charged. If the violation is established, the court may continue the original probation or revoke the probation and either order a new probation with any condition provided for in Section 31-20-5 or 31-20-6 NMSA 1978 or require the probationer to serve the balance of the sentence imposed or any lesser sentence. If imposition of sentence was deferred, the court may impose any sentence [which] that might originally have been imposed, but credit shall be given for time served on probation.

          C. If it is found that a warrant for the return of a probationer cannot be served, the probationer is a fugitive from justice. After hearing upon return, if it appears that [he] the probationer has violated the provisions of [his] the probationer's release, the court shall determine whether the time from the date of violation to the date of [his] the probationer's arrest, or any part of it, shall be counted as time served on probation. For the purposes of this subsection, "probationer" means a person convicted of a crime by a district, metropolitan, magistrate or municipal court.

          D. The board shall budget funds to cover expenses of returning probationers to the court. The sheriff of the county in which the probationer was convicted is the court's agent in the transportation of the probationer, but the director, with the consent of the court, may utilize other state agencies for this purpose when it is in the best interest of the state."  

     SECTION 2. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.

- 3 -