44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO CRIMINAL SENTENCING; CHANGING THE PERIOD OF PROBATION FOR DOMESTIC VIOLENCE CRIMES; AMENDING SECTIONS OF THE NMSA 1978.

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

Section 1. Section 31-19-1 NMSA 1978 (being Laws 1963, Chapter 303, Section 29-4, as amended) is amended to read:

"31-19-1. SENTENCING AUTHORITY--MISDEMEANORS--IMPRISONMENT AND FINES--PROBATION.--

A. [Where] When the defendant has been convicted of a crime constituting a misdemeanor, the judge shall sentence the person to be imprisoned in the county jail for a definite term less than one year or to the payment of a fine of not more than one thousand dollars ($1,000) or to both such imprisonment and fine in the discretion of the judge.

B. [Where] When the defendant has been convicted of a crime constituting a petty misdemeanor, the judge shall sentence the person to be imprisoned in the county jail for a definite term not to exceed six months or to the payment of a fine of not more than five hundred dollars ($500) or to both such imprisonment and fine in the discretion of the judge.

C. When the court has deferred or suspended sentence, it shall order the defendant placed on supervised or unsupervised probation for all or some portion of the period of deferment or suspension. When the defendant has been convicted of a domestic violence crime constituting a misdemeanor, the total period of probation shall not exceed eighteen months. When the defendant has been convicted of a domestic violence crime constituting a petty misdemeanor, the total period of probation shall not exceed one year."

Section 2. Section 31-20-5 NMSA 1978 (being Laws 1963, Chapter 303, Section 29-17, as amended) is amended to read:

"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 [field services division of the] corrections department to furnish [provided, however]. When the defendant has been convicted of a crime constituting a felony, 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]. When the defendant has been convicted of a domestic violence crime constituting a misdemeanor, the total period of probation shall not exceed eighteen months. When the defendant has been convicted of a domestic violence crime constituting a petty misdemeanor, the total period of probation shall not exceed one year.

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."

Section 3. 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 a written statement setting forth that the probationer has, in the judgment of the director, violated the conditions of his 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 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] entirety of the sentence imposed or any lesser sentence, less credit for time served on probation. 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. When the defendant has been convicted of a domestic violence crime constituting a misdemeanor or a petty misdemeanor, the amount of credit given for time served on probation shall be one day of credit for every three days served on probation. When the defendant has been convicted of any other crime constituting a misdemeanor or a petty misdemeanor or has been convicted of a crime constituting a felony, the amount of credit given for time served on probation shall be one day of credit for every one day 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 release, the court shall determine whether the time from the date of violation to the date of his arrest, or any part of it, shall be counted as time served on probation.

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] use other state agencies for this purpose when it is in the best interest of the state."

Section 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 1999.